Antitrust & Competition

Orrick’s Antitrust and Competition Group provides the full range of counseling and compliance services needed to navigate the various antitrust and competition laws and regulations in the United States, Europe and Asia.

We have guided a diverse range of businesses, organizations and trade associations through the complexities of antitrust compliance, and helped them manage antitrust risk and avoid antitrust liability. We do so by understanding the business strategies of our clients and becoming strategic partners with them and our colleagues in related fields, such as intellectual property, regulatory matters, and mergers and acquisitions. We have extensive expertise in, and routinely provide guidance concerning, state antitrust, unfair practices and unfair competition law issues.

Our antitrust and competition lawyers provide counseling and compliance advice in the following areas, among others.

• Agreements among competitors
• Licensing and contractual restraints
• Pricing and distribution
• Joint purchasing and selling
• Refusals to deal
• Bundling and tying
• Exclusive dealing
• Mergers and acquisitions
• Trade associations
• Intellectual property
• Standard setting
• Patent pools
• Information exchanges
• Government investigations

Orrick’s Antitrust and Competition Group is often called upon to guide clients through the challenging antitrust and competition issues that arise in obtaining, licensing and protecting intellectual property rights. We help owners of IP rights realize the value of their innovation, while guiding them through the minefield of licensing practices that can create antitrust or competition problems, or provide the basis for a patent misuse defense in an infringement action.

Our antitrust and competition lawyers work with Orrick’s intellectual property lawyers in developing license agreements, including agreements to settle patent infringement litigation. We advise to companies that participate in standard-setting organizations, and we have substantial experience litigating issues at the intersection of antitrust and intellectual property, including antitrust counterclaims asserted in response to patent infringement claims.

Antitrust and Competition and IP Counseling Services:

• Royalty structures
• Licensing terms and restraints
• Cross-licenses
• Patent pools
• Standard setting
• Patent misuse

Orrick’s Antitrust and Competition Group, working with our white collar defense practice, handles the defense of criminal cartel prosecutions on behalf of companies and individuals around the world.

Cartel expertise

Competition authorities worldwide are dialing up their anti-cartel efforts and heightening cross-border collaboration, with synchronized "dawn raids" mounted across jurisdictions. Companies can expect more of the same going forward – perhaps much more. Critical to risk management is an aggressive response that proactively addresses compliance alerts and other indications of anti-competitive conduct. Speed and agility can also mean the difference between amnesty or leniency and catastrophic sanctions. The choice of cartel counsel is thus a crucial decision point in protecting the company and its personnel.

Government enforcer insights

Our cartel team includes several former U.S. federal prosecutors with extensive experience in antitrust criminal enforcement in the United States, and who have represented both U.S. and non-U.S. companies and their executives and employees. Our team members have also worked in international cartel enforcement working groups at the Organization for Economic Co-operation and Development in Paris and for the International Competition Network in Seoul and Bonn, as well as on missions to assist India’s development of its growing antitrust regime. The government experience of our lawyers allows us to leverage invaluable insights and perspectives to effectively defend clients in cartel investigations.

Multijurisdictional coordination

We are highly regarded for our ability to represent clients in multijurisdictional government investigations. Our lawyers work seamlessly across the globe to craft a coordinated defense solution for criminal cartel investigations and prosecutions of companies and individuals, as well as in anticipation of follow-on civil litigation and follow-on damages actions. Our lawyers have defended companies or senior corporate officials in governmental probes in the United States, Europe and Asia of alleged price fixing in the DRAM, SRAM, LCD, CRT and automobile parts industries, among others. Each of these matters required close coordination and teamwork; we not only counseled our clients on the internal investigations but also directly participated in sensitive negotiations with the European Commission and other regulatory agencies.

Cartel Investigations: A High-risk Landscape

Companies facing international cartel investigations must anticipate enforcement actions not only by the U.S. Department of Justice and/or the European Commission, but also by other antitrust authorities around the world. Jurisdictions such as Canada, Australia, Brazil, Japan, Ireland, Israel and the U.K. also have criminal sanctions.

Of course, that's just part of the cost. Companies subject to enforcement efforts face reputational harm, the erosion of shareholder value, and the practical costs of ongoing distraction or loss of senior executives. The inevitable follow-on – complex federal and state litigation – can prolong a company’s reputational agony and also have severe economic ramifications. Collateral consequences of a felony indictment can range from financing effects to preclusion from government bidding, from False Claims Act allegations to shareholder derivative suits.

Orrick’s Antitrust and Competition Group assists clients in developing and advising on strategy and obtaining merger clearances around the world.

With attorneys in the United States, Europe and Asia, the team offers clients seamless service for multi-national transactions, including private and public takeovers. Our lawyers have extensive experience managing and devising solutions for high-profile transactions in key sectors, such as airlines, oil and gas, infrastructure, telecommunications, chemicals, pharmaceuticals, media, leading consumer branded goods, and food and grocery.

We regularly appear before competition agencies such as the U.S. Department of Justice, the U.S. Federal Trade Commission, the European Commission and national agencies, including the Competition and Markets Authority (U.K.), the Bundeskartellamt (Germany) and the Conseil de la Concurrence (France). We guide clients through first and second phases of merger investigations in national and global transactions. In particular, we have extensive experience preparing and presenting the necessary economic evidence to gain approval of strategic transactions. Where necessary we assist in the negotiation of remedies that will preserve key business goals.

Our lawyers have tried some of the most high-profile merger cases in federal court against U.S. enforcement agencies, including Western Refining, where our lawyers were part of the trial team that defeated the FTC’s preliminary challenge to Western Refining’s acquisition of Giant Industries in the oil and gas sector and successfully persuaded the FTC not to pursue further action.

The team benefits from the insights and experience of several members who have worked for the merger review units of the U.S. Department of Justice and the European Commission. Our lawyers are recognized as experts in mergers in the EU, UK, U.S. and Asian directories of publications such as Chambers and Legal 500.

Orrick’s Antitrust and Competition Group has been on the front lines of private antitrust litigation for decades, playing a central role in some of the most important cases that have defined the sophisticated legal and economic analysis that applies to the most complicated antitrust issues.

We have extensive experience with every type of antitrust claim, including claims involving price fixing, predatory pricing and buying, bundling and loyalty programs, tying, exclusive dealing, monopolization, product distribution, counterclaims in infringement actions, mergers and acquisitions.

We routinely handle the most challenging antitrust claims and procedurally complicated antitrust litigation, at times managing scores of cases involving many parties spanning multiple jurisdictions.

Our lawyers have a strong record in both the trial and appellate courts. In fact, companies often turn to us to handle their most important appeals, switching from other law firms that represented them at trial.

We also are in the forefront of private damage actions in the European Union. And we filed one of the first private damage actions in the European Union, an action against the dominant rail carrier on behalf of the Enron Receiver.