Single-Firm Conduct: Mastering New DOJ Enforcement Guidance to Avoid Antitrust Violations
Navigating the Conflicting DOJ and FTC Standards
Recording of a 90-minute CLE teleconference with Q&A
Conducted on Tuesday, November 25, 2008
Recorded event now available
Description
The U.S. Department of Justice, Antitrust Division issued its year-long study on single-firm conduct under Section 2 of the Sherman Act in September. The 213-page report provides the DOJ's guidance to companies and counsel on the types of conduct that may violate antitrust law.
However, the Federal Trade Commission did not endorse the report, and three FTC Commissioners said it was due to a rift between the agencies over some of the report's conclusions. This move leaves companies and their counsel uncertain as to how to proceed.
Companies within the DOJ’s jurisdiction can rely on its policy statement, but companies within the FTC’s jurisdiction should anticipate a more aggressive approach. Should companies that aren't sure which reviewing agency they'll face prepare for the more rigorous review?
Listen as our panel of antitrust attorneys examines the DOJ's new guidance, provides their perspective on the FTC's refusal to endorse the report, and offers their best practices for companies to avoid violations.
Outline
- Legal standards for violations of Section 2 of the Sherman Act
- Risk of deterring pro-competitive conduct and aggressive competition versus the risks under enforcement
- Type I risks
- Type II risks
- Various tests for Liability under Section 2
- Disproportionality test, profit-sacrifice test, consumer welfare/balancing test, no economic sense test
- Conduct-specific tests and safe harbors
- Risks posed by specific practices
- Bundling products
- Exclusive dealing
- Tying
- Pricing and discounts
- Practical implications for counseling
Benefits
The panel will review these and other key questions:
- What guidance does the DOJ report provide concerning exclusionary conduct and the use of the profit-sacrifice test?
- What role will the DOJ's newly adopted safe harbor provisions play in determining whether single-firm conduct has violated antitrust law?
- What is the impact for companies of the FTC's refusal to endorse the DOJ enforcement standards?
Faculty
Janet L. McDavid,
Partner
Hogan & Hartson, Washington, D.C.
She focuses on antitrust, competition, and trade regulation, with a particular emphasis on government investigations, litigation, and antitrust policy issues. She is widely recognized as a leading authority in antitrust law and has authored and co-authored many books and articles involving antitrust law.
Charles T. (Chris) Compton,
Partner
Wilson Sonsini Goodrich & Rosati, Palo Alto, Calif.
He has overseen the antitrust regulatory work in over 900 mergers, acquisitions, and joint ventures, many of which involved investigations by the FTC, the Dept. of Justice, and the European Commission. He plays a leadership role in the firm's antitrust practice and focuses on merger regulatory and intellectual property issues.
Kyle Andeer,
Attorney Advisor to Commissioner Thomas Rosch
Federal Trade Commission, Washington, D.C.
He advises FTC Commissioner Rosch on competition issues. Before joining the Commissioner's office, he was in private practice and worked in the Dept. of Justice’s Antitrust Division for several years.
Joseph G. Krauss,
Partner
Hogan & Hartson, Washington, D.C.
He focuses on antitrust and economic regulation, with an emphasis on merger and acquisition counseling and litigation in all industries, and before federal, state, and foreign antitrust authorities. He counsels clients in numerous matters relating to mergers and acquisitions, joint ventures, distribution issues, Sherman Act, and Hart-Scott-Rodino Act compliance.
Ordering
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Customer Reviews
The seminar provided great examples to correspond with the subject matter.
Susan Gray
Hanesbrands Inc. - Law Dept.
The real case examples and case citations were very helpful.
Tyler Wilkinson
Axley Brynelson, LLP
The program was very to the point — no fluff.
Brian McNamara
Wright Lindsey & Jennings
All of the speakers were very informative, and being able to ask questions was very helpful.
Larry V. Smith
Jackson Walker
The teleconference addressed a highly relevant topic that recurs in my practice. The subject matter was very timely and informative.
Saleem Moghal
Paul Hastings Janofsky & Walker
Antitrust Law Advisory Board
Partner
Skadden Arps Slate Meagher & Flom
Partner
Fenwick & West
Shareholder
Greenberg Traurig
Partner
Foley & Lardner
Partner
Mayer Brown
Shareholder
Briggs and Morgan
Partner
Hogan Lovells
Partner
Jones Day
Partner
Akin Gump Strauss Hauer & Feld
Partner
Kaye Scholer
Partner
Gibson Dunn & Crutcher
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