Practice Areas: Antitrust & Trade Regulation

Latest News:

Gabriella Olson-Welsh Speaks at Competition Law Conference (1/27/2012)

FTC Announces Changes to Hart-Scott-Rodino Filing Requirements (1/26/2012)

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Businesses should be able to use all available tools and strategies to compete. At McGuireWoods LLP, we look for creative, practical ways for clients to compete effectively with maximum flexibility and acceptable risk. We serve clients as business counselors, trial lawyers, and agency professionals throughout the world in virtually every significant area of antitrust and competition law, including:

• Antitrust Counseling
• Antitrust Audits & Compliance Programs
• Grand Jury Investigations & Criminal Prosecutions
• International Cartel Investigations
• Private Treble Damage Litigation
• Class Action Litigation
• Mergers & Acquisitions
• Debarment Proceedings
• State Aid within the EU

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Antitrust Litigation & Government Investigations

McGuireWoods’ lawyers have developed deserved reputations as imaginative problem solvers in a wide range of antitrust matters – civil, criminal and regulatory. They regularly appear before courts, agencies and tribunals throughout the United States and in Europe.

We have substantial experience in all forms of civil antitrust litigation. We regularly represent corporations, trade associations and individuals in follow-on treble damage civil litigation spawned by government investigations and in other civil antitrust litigation, including indirect purchaser litigation and multi-district class actions.

Our trial teams have litigated antitrust disputes involving allegations of price fixing, monopolization, attempts to monopolize, predatory pricing, tying arrangements, price discrimination and a host of other claims in an array of industries, ranging from ground and marine transportation, to paper products, telecommunications, soft drinks, highway and airport paving, life sciences, health care, furniture, coalbed methane gas and baked goods.

We have equally substantial experience in the criminal antitrust arena, and have represented domestic and foreign companies and individuals in a variety of proceedings, including dawn raids, grand jury investigations and amnesty applications, as well as criminal trials involving allegations of price fixing, bid rigging, customer and market allocations and many other claims.

We take pride in the fact that we have been able to achieve a full range of positive outcomes for clients, from convincing the government not to bring charges, to securing dismissals of lawsuit, to obtaining leniency under amnesty programs, negotiating favorable plea agreements and settlements, securing immunity for targets of investigations, avoiding debarment or disqualification from bidding on government contracts and winning acquittals at trial. Our European lawyers handle similar matters, with similar results, in the EU.

Representative Work

• Represented a domestic ocean container shipping company in a price-fixing investigation conducted by the U.S. Department of Justice Antitrust Division, and defended numerous consolidated private antitrust class action and indirect purchaser damage claims arising from the government’s investigation.
• Represented a major carrier of liquid chemicals in ocean-going vessels in an investigation by the U.S. Department of Justice Antitrust Division and in defense of numerous treble damage actions alleging anticompetitive conduct by competitors in the parcel tanker shipping industry.
• Represented a major carrier of liquid chemicals in ocean-going vessels in defense of an indirect purchaser putative class action involving allegations of price fixing, bid rigging, and market and customer allocation arrangements.
• Represented a large food manufacturer in civil litigation in which it was alleged to have entered into unlawful tying arrangements and exclusive dealing agreements to monopolize the relevant market.
• Represented a leading energy producer in civil litigation in which it was alleged to have monopolized coal bed methane gas production and transportation in certain markets.
• Played a leading role in drafting a petition for certiorari and the brief on the merits in a U.S. Supreme Court case that presented the question whether arbitrators may impose class arbitration on parties whose arbitration clauses are silent on the issue. The case was won for the client.
• Represented consumer electronics retailer in a class action lawsuit alleging price discrimination and sales below cost in the sale of compact discs.
• Represented a Fortune 100 manufacturer in numerous class action suits alleging price fixing in the vitamins industry.
• Defended the manufacturer of “away from home” commercial tissue products in class action litigation alleging price fixing.
• Conducted expedited internal investigations of possible anticompetitive behavior and secured admission into the U.S. Department of Justice’s Corporate Leniency Program.
• Obtained dismissal of antitrust claims against a Fortune 100 chemical company alleged to have unlawfully excluded a competitor from competing in the United States.
• Defended soft drink bottlers against criminal charges of price fixing.
• Defended various paving companies against criminal price-fixing charges in highway paving industry and subsequent civil litigation.
• Defended a manufacturer against criminal price-fixing charges in the paper market.
• Represented a surgery center in the prosecution of a tying arrangement by the area’s largest hospital.
• Represented numerous high level executives in criminal antitrust investigations.
• Represented one of several defendants charged with conspiring to fix the price of building bricks. The case went to the U.S. Supreme Court and established the rule that antitrust damages are recoverable only by direct purchasers.
• Provided advice in relation to various EU cartel investigations.
• Acted on an appeal to the European General Court by a third party in relation to an EU decision concerning alleged aid granted to a competitor.
• Acted on an appeal to the European General Court by an airline in relation to alleged aid granted to it by an EU government.
• Advised on the state aid aspects of a significant UK motorway extension project.
• Advised on the state aid aspects of a significant UK light railway extension project.

Business Antitrust Counseling

Doing business in a global environment requires experience and up-to-date knowledge, not only of U.S. federal and state antitrust laws, but also of the laws of the EU and the sometimes atypical laws of other countries. The often-conflicting substance and interpretation of these laws can affect companies in unexpected ways, creating new challenges, but also significant opportunities.

We are business advisors and counselors to domestic and foreign companies spanning dozens of industries. Our antitrust and trade regulation lawyers have devoted their legal careers to solving the antitrust problems that businesses face daily. Our goal is to prevent litigation. To that end, we:

• Conduct antitrust audits and implement compliance programs.
• Conduct training programs and seminars on antitrust for clients and their employees.
• Help clients design sales, marketing and distribution systems that comply with antitrust laws.
• Advise clients on a variety of pricing and distribution issues, such as resale price maintenance, exclusivity, most favored nation clauses, and price discrimination.
• Handle franchising questions and registrations.
• Structure joint ventures and strategic alliances.
• Deal with trade regulation issues of the EU and other international venues.

Representative Work

• Conducted in-depth, proactive antitrust audits of multinational corporations in North America, South America and Europe in a number of industries, such as paper products, chemicals, packaging and building materials.
• Designed and helped implement antitrust compliance programs for numerous clients, and conducted antitrust training programs around the world for clients and their employees.
• Advised trade associations in a number of industries regarding compliance with antitrust laws and the implementation of processes and procedures to ensure continued antitrust compliance.
• Provided antitrust advice to members of standard-setting organizations, and counseled them regarding strategies for minimizing antitrust risks associated with those activities.
• Conducted expedited, internal investigations into possible cartel behavior to ascertain the potential need to self-report under the U.S. Department of Justice Amnesty Program.
• Advised clients on price discrimination laws such as the Robinson-Patman Act, and helped clients develop mechanisms for documenting the reasons for differentiated pricing between similarly situated customers.
• Advised clients regarding creating and enforcing Internet pricing and sales policies in accordance with state and federal antitrust laws.
• Advised clients regarding antitrust risks associated with forming joint ventures or other strategic alliances, and strategies for minimizing those risks.
• Provided advice to a large industrial gas purchaser in relation to the competition and regulatory issues raised by its EU-wide gas purchasing arrangements.
• Provided advice to an EU-based importer of DVD players on the Article 101 and 102 TFEU issues raised by a licensing dispute with a patent holder and patent pool.
• Advised EU clients on a wide range of other abuse of dominance issues under Article 102 and national law.
• Advised EU clients on a range of distribution, franchising and horizontal cooperation agreement issues under Article 101 and national law.

Mergers and Acquisitions

Sometimes business growth and expansion depends on the ability of our lawyers to get a merger or acquisition approved by competition authorities. Our lawyers have years of experience in obtaining Hart-Scott-Rodino clearance for mergers and acquisitions from the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice.

We know the people, the process and the policies of the FTC, DOJ and other regulatory bodies around the world, including the European Commission. We also know the complex legal and economic issues that generally lie at the core of any merger or acquisition.

We advise clients on all aspects of transactions and work closely with them and economists or other professionals to develop strategies for each step of the approval process. Experience and state-of-the-art technology allow us to handle the largest and most complex “second requests” for documents quickly and efficiently. We are equally experienced in litigating transactions that antitrust enforcement agencies seek to enjoin and in negotiating and putting in place remedies where required.

Even for transactions that do not present substantial antitrust risks, we advise clients regarding potential “gun jumping” liability associated with premerger coordination and transition planning. We also represent third parties asked to provide information in connection with a merger investigation, as well as clients who wish to object to particular merger transactions.

Representative Work

• The firm’s antitrust lawyers recently have obtained federal government approval of five substantial transactions:
  1. The merger of a leading energy company and a natural gas company.
  2. The merger of a major food producer and a hog supplier.
  3. The merger of two leading forest products companies.
  4. The merger of two major paper products companies.
  5. The merger of two hospitals.
• Obtained dismissal of the FTC’s lawsuit to enjoin the billion-dollar sale of a natural gas company to another entity.
• Persuaded the FTC to reconsider (and partially dissolve) a completed merger that put a client at risk.
• Handled an investigation by the FTC into potential “gun-jumping” claims stemming from a transition services contract entered into between merging parties.
• Counseled investment firms on the antitrust review of major mergers and acquisitions.
• Advised private equity firms on a range of actual and proposed transactions.
• Represented a corporation that failed to make required HSR notifications and resolved the issue without any civil penalty or fine.
• Represented the seller in an FTC investigation of a non-reportable transaction in the home security industry.
• Represented third parties in either providing information or opposing a number of high-profile mergers.
• Obtained UK phase two clearance, with remedies, of a fertilizer and process chemicals joint venture between the only two domestic suppliers.
• Obtained EU phase two clearance, with remedies, of a significant acquisition of a machinery manufacturing company by a competitor.
• Obtained UK phase one clearance, with remedies described by the UK Office of Fair Trading as "unique," of an acquisition of a manufacturing company by a competitor.
• Obtained EU phase one clearance of the acquisition of a large UK chemical manufacturing facility by a competitor.
• Represented third parties in either providing information in relation to or opposing a number of high-profile mergers before the European Commission and national regulators.