What is Antitrust Law?

Antitrust law – sometimes referred to as “competition law” – focuses on the statutes and regulations that promote fair and open competition within different industries and geographic markets. Antitrust laws scrutinize monopoly activity, price-fixing and collusion, bid rigging, merger plans between business, price discrimination, group boycotts, and a range of other business conduct that, depending on the circumstances and the impact on the consumer, may run afoul of the law. There is a core set of relevant statutes –perhaps most central is the Sherman Act – and a little over a century of case law fleshing out the rules; state antitrust laws tend to follow federal statutes.

Due to its focus on markets and prices, antitrust law often overlaps with the field of economics. While most antitrust attorneys will report that an economics background is not essential for the practice – and, indeed, many attorneys do not have such a background – those with economics training may find themselves more comfortable initially with issues related to antitrust law. The field also extends into the world of intellectual property (IP), as IP protections offer a monopoly to the owner of the IP for a certain period of time.

The globalization of business operations and markets has led to increased international regulation of antitrust rules. Even a practice based in the US may handle cross-border transactions, EU regulations, and/or analysis of international product and geographic markets.

What do antitrust lawyers do?

It might be helpful to think of antitrust practice as being divided into two broad categories: 1) litigation/investigations, and 2) mergers.

In the first category, an attorney can expect to use the tools of a litigator to help a client either defend or prosecute antitrust violations, or to pursue or counsel a person/company through investigations. The litigation matters – often referred to as “behavioral” or “conduct” matters – could take the form of one competitor in an industry alleging unfair monopolistic or price-fixing conduct on the part of another competitor. Or the suit could be an enforcement action – brought pursuant to civil or criminal laws – in which the government alleges that a business has violated antitrust laws or regulations. Such suits might call on an attorney to use fundamental litigation skills (e.g., legal research and writing, factual investigation, documentary discovery, taking depositions, arguing motions in court, engaging in negotiations) to advance their client’s case. A litigator might also expect to work with economic experts to help establish or defend the client’s case. Often the experts do the detailed analysis of product or geographic markets; it is the work of the attorney to present this analysis in a compelling way to the fact-finder. The world of antitrust law is marked by relatively few statutes and regulations; it is not an area with an enormous regulatory overlay like, for instance, environmental law. Discovery in antitrust cases can be especially voluminous, covering issues related to supply chains, pricing, product development and marketing, competitive intelligence, shareholder meetings (if relevant), and emails sent in the ordinary course of business. These suits or investigations may take several years to be resolved.

The second category, mergers, calls on antitrust attorneys to advise their client in the pendency of a mergers & acquisitions deal. Attorneys will file documents with the appropriate regulatory authorities regarding the merger, conduct “due diligence” (similar to discovery in the litigation context) regarding the merger to learn about relevant facts related to product and geographic market, advise on potential regulatory issues, and (if needed) negotiate an outcome that allows the merger to go through. Because this practice is related to the life cycle of M&A deals, clearance work is more active when the economy is good, as deal flow tends to be greater during these times. Typically, merger clearance takes place on a more accelerated timeline than litigation or investigations;an attorney in this field can expect to resolve matters quickly and then move onto the next project.

Antitrust lawyers often cite as an attractive feature of their practice their need to learn about different business industries in great detail. To work on a litigation matter or to handle a merger clearance the attorney must often dive into the specific businesses at the heart of the matter and also become very familiar with the broader industry in which that business operates. Healthcare, technology, energy, credit cards, and publishing are some industries that have seen a good amount of antitrust activity recently.

Where it’s Hot

Investigations and litigation work is prevalent in Washington, DC. But, antitrust work more broadly can be found in many places in the US and around the world. Additionally, many in-house positions may value an attorney with antitrust experience, as businesses may face antitrust issues in their ordinary course of business.