Antitrust and Competition
Duane Morris attorneys represent and counsel international, national and regional business entities on all aspects of antitrust and competition law.
Range of Services
Antitrust and Trade Litigation
Duane Morris trial lawyers represent clients in individual and class private treble damage actions, including matters between business entities and multi-district class actions, and direct and indirect purchaser actions following government investigations. We have litigated matters involving claims of monopolization, attempted monopolization and conspiracies to monopolize, the competitive effects of mergers and acquisitions, price restraints, output restraints, group boycotts or collective refusal to deal, exclusive dealing, tying, price discrimination, dealer termination, territorial restraints, restrictive covenants or noncompetition agreements, improper assertions of patents and other intellectual property rights, state unfair trade practice claims, trade secret and Lanham Act unfair competition and trademark claims and matters involving exemptions or immunities, including the state action doctrine and the Noerr-Pennington doctrine, and the McCarran-Ferguson Act. In addition, we have represented clients in international trade matters, including matters before the International Trade Commission, and consumer protection matters, including recent Federal Trade Commission seizure and enforcement under the Can Spam Act.
Grand Jury Investigations
Duane Morris represents individuals and corporations indicted for criminal violations of the antitrust laws and companies that have received grand jury subpoenas. We have represented clients in alleged price fixing and other grand jury investigations. In conjunction with our White-Collar Criminal Defense, Corporate Investigations and Regulatory Compliance practice, we conduct internal investigations and counsel clients in connection with such investigations. Where clients receive subpoenas, we have developed programs for the systematic review and production of documents subpoenaed by the grand jury and the interviewing of witnesses, to help persuade the government that the client is innocent of wrongdoing. We also counsel clients regarding leniency programs, and implications regarding follow-on civil litigation. Where appropriate, we have taken matters to trial.
Mergers and Acquisitions
Duane Morris provides services for clients involved in mergers and acquisitions, including assessing exemption from and, where applicable, compliance with the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and Federal Trade Commission and Department of Justice investigations of and litigation relating to mergers and acquisitions. In addition to general antitrust practice, we handle matters arising under the Bank Merger Act and Bank Holding Company Act relating to mergers and acquisitions in the banking industry, including informal and formal investigations by the Department of Justice and obtaining regulatory approvals from bank regulatory agencies in transactions in which detailed competitive analysis is required based on bank merger antitrust screens.
Antitrust Compliance and Counseling
We advise clients, including manufacturers, distributors, licensors, financial institutions, healthcare institutions, insurance companies, joint ventures, trade associations and other collective organizations, on compliance and risk avoidance in a variety of contexts to minimize the potential for antitrust violations and liability. Our counseling includes advice relating to the Federal Trade Commission and Department of Justice Horizontal Merger Guidelines, Antitrust Guidelines for Collaboration Among Competitors, Statements of Antitrust Enforcement Policy in Health Care, and Antitrust Guidelines for the Licensing of Intellectual Property. In addition to generalized audits and compliance programs, we regularly counsel clients on antitrust risks and compliance in connection with potential transactions, business and distribution arrangements, pricing practices and other conduct.
Industries Served & Highlights of Practice
Duane Morris antitrust and competition lawyers have represented clients or provided counsel in matters involving:
- the healthcare industry
- pharmaceutical companies
- the banking and financial services industry
- the insurance industry
- the computer industry, including software and licensing
- memory chips, semiconductor manufacturing and related technology
- TFT-LCD thin panel displays
- the automotive industry
- the energy industry, including electricity, oil and natural gas
- office service products and imaging equipment, maintenance, parts and service
- limited distribution hair care products systems and outlets
- retail product distribution
- the shipping industry
- government contracting
- convenience stores
- golf equipment
- electrical supplies
- paper and corrugated containers
- construction and building materials and plumbing fixtures
- tobacco products
- educational institution accreditation
- carbon brushes
- boxed candies
- concrete pipes
- patents, copyrights and other intellectual property
We have defended healthcare institutions accused of antitrust violations with respect to denial of hospital staff privileges. Our lawyers have tried, as well as defended to secure summary judgment or satisfactory settlement, cases involving healthcare providers and vendors of healthcare supplies charged with conspiracy under Section 1 of the Sherman Act and monopolization under Section 2 of the Sherman Act. In addition, we counsel individual business entities and collective groups in the healthcare field on antitrust compliance, including application of the FTC and Department of Justice Statements of Antitrust Enforcement Policy in Health Care. We have litigated matters involving issues of buyer-side market power, and cases involving application of detailed product market and geographic market analysis.
Banking & Financial Services Antitrust
We represented one of several credit card issuers in antitrust litigation relating to Visa and MasterCard rules enjoined in an earlier action brought by the Department of Justice, and have represented one of several banks in an action involving claims that banks conspired to fix "prime rates." We have also represented financial institutions in claims alleging attempted monopolization of the offshore drilling industry and financing for that industry, and claims against lenders under the antitying provisions of the Bank Holding Company Act. We have a long-standing bank merger antitrust practice and have presented competitive analysis of many transactions to the Department of Justice and bank regulatory agencies which have been cleared with no or minimal divestiture, notwithstanding bank merger antitrust screens indicating the need for competitive review. We have assisted many large bank holding companies and bank chains in the statewide and interstate expansion of their branch networks. We prepare antitrust compliance programs, competitive briefs for use in banking applications and other regulatory filings, and detailed analysis for the planning of mergers, acquisitions and divestitures. We represent our clients through informal and formal investigations and in court, if necessary.
We represented a leading insurer in connection with a purported nationwide class action relating to dealings with brokers involving contingent commissions and other practices, and we counsel insurance companies on mergers and acquisitions and antitrust compliance. We defended one of several major insurance companies sued by a state insurance commissioner for alleged anticompetitive conduct in response to legislative rollbacks of automobile insurance rates, and we are counsel to insurance rating bureau organizations, and provide antitrust advice and counseling in connection with the activities of those organizations.
Intellectual Property Antitrust
Our antitrust lawyers work with our patent lawyers on intellectual property antitrust claims and defenses, providing the depth and breadth of experience needed for such complex matters. We also regularly counsel companies on antitrust compliance in connection with licensing, distribution and manufacturing in technology-driven industries. We further advise intellectual property owners and licensees on antitrust compliance in connection with the licensing and enforcement of intellectual property rights and patent settlements in ANDA litigation in conjunction with our ANDA litigation practice group.
We have represented truck dealers and automobile dealers in several litigation matters involving Sherman Act and Robinson-Patman Act claims. We have also represented dealers in a RICO class action and have represented a public transit bus manufacturer in connection with state dealer laws. We represent worldwide automobile manufacturers and other entities in compliance with UK and EU competition regulation and related matters. We have also represented auto-parts manufacturers and suppliers in connection with antitrust compliance and licensing issues.
Distribution and Franchise Matters
We represent manufacturers, distributors, franchise associations, cooperatives, franchisees and franchisors in structuring distribution systems and establishing contracts and franchises, and in connection with disputes arising out of their business relationships, including antitrust and unfair trade practices claims, claims for trademark infringement, breach of the franchise agreement and fraud, as well as actions for injunctive relief and damages in connection with the termination of distribution, franchise and other business relationships. By way of example, we have represented a manufacturer and supplier of office service products in various matters relating to its distribution and dealer and national account system and disputes relating to termination of certain dealer relationships, a distributor of salon-only brands of hair care products in defending group boycott and monopolization claims, and various manufacturers, distributors and dealers in termination disputes or disputes over pricing and terms of dealing. We counsel clients and litigate matters relating to distribution agreements, pricing and advertising and promotion issues, dual distribution and selective distribution.
The firm represents trade associations and rating bureaus, and advises clients on antitrust risks relating to participation in trade associations and contacts with competitors in connection with such activities. Duane Morris' work for trade association clients includes counseling on corporate structure and governance of collective organizations, industry price or cost-related surveys and antitrust compliance in reporting formats of such information, membership issues, issues relating to ethical or professional standards potentially relating to pricing for services, apprising association constituents of important new legal developments, advice and counseling on antitrust compliance in board and committee meetings and other activities and addressing general issues of concern arising from potential violations of antitrust laws. We have represented clients in antitrust litigation matters in which association activity is the foundation for conspiracy allegations, and counseled individual clients and associations and collective organizations on avoidance of such claims.