Avoiding Antitrust Violations in Competitor Collaborations

As competitors increasingly look to joint ventures or other collaborations as an alternative to mergers or acquisitions, the risks of antitrust violations increase. Competitors who collaborate must avoid clashing with antitrust laws -- and Department of Justice and Federal Trade Commission scrutiny.

The Supreme Court’s recent decision in Texaco Inc. v. Dagher and Shell Oil Co. v. Dagher signals that even government-approved joint ventures present the risk of private antitrust litigation. Many issues remain to be clarified in applying antitrust principles to joint ventures and other competitor collaborations.

Since the DOJ and FTC released their “Antitrust Guidelines for Collaboration Among Competitors,” federal regulators have shown – as in the case of Polygram Holdings, Inc. v. Federal Trade Commission -- that they will not hesitate to punish joint ventures that go beyond legal boundaries.

Listen as our authoritative panelists review the circumstances under which competitor collaborations create an antitrust threat and how best to address that threat in planning for and operating competitor collaborations.

Lisa C. Wood, Partner, Foley Hoag, Boston, has over 22 years of experience handling complex business litigation matters, principally in the areas of securities fraud, accountants liability, and antitrust. She advises clients on the various insurance coverage issues that arise out of business litigation and offers preventative litigation and corporate compliance advice in the securities and antitrust areas.

Nicholas R. Koberstein, Partner, McDermott Will & Emery, Washington, DC, is a member of the firm's Antitrust and Competition Practice Group, where he focuses on antitrust implications of mergers, acquisitions and joint ventures. He previously worked with the FTC were he led numerous investigations of joint venture and other competitor collaborations in a wide variety of industries.

David B. Goroff, Partner, Foley & Lardner, Chicago, is a member of the firm's Litigation Department and the Appellate, Business Reorganizations, and Antitrust Practice Groups. His antitrust experience includes preparing antitrust compliance programs for clients, structuring joint ventures, advising clients of the application of antitrust laws to previously regulated industries, and assisting clients with the merger review process before the FTC and DOJ.

They address these and other key questions:

• What is the current level of the DOJ and FTC interest in investigating collaborative arrangements for potential antitrust violations?
• What types of cooperative relationships have most frequently drawn scrutiny for potential antitrust violations and how can you avoid crossing that line?
• What is the distinction between mergers and collaborations and why do those differences matter?
• How effective are the safety zones established for permissible collaborations?
• Where have the courts recently come down on collaboration vs. collusion questions?

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