Antitrust Concerns With Joint Ventures and Collaborations: Competitive vs. Anticompetitive Effects, NCAA v. Alston

Avoiding Liability for "Naked" Agreements, Ancillary Restraints, Collusion

Recording of a 90-minute CLE video webinar with Q&A


Conducted on Tuesday, June 15, 2021

Recorded event now available

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Course Materials

This CLE course will analyze the potential antitrust ramifications of joint ventures (JVs) and other collaborations between competitors and how to balance the pro-competitive efficiencies against the anticompetitive effects of a proposed JV. The panel will also discuss recent cases, including NCAA v. Alston, currently before the U.S. Supreme Court, and agency guidance regarding "naked" transactions, competitive restraints, information sharing, and more.

Description

JVs and other business collaborations can require navigation of a potential minefield of antitrust issues. In general, a JV antitrust analysis raises four sets of questions: the first, "is there a legitimate JV?" The next three focus on whether the JV's procompetitive efficiencies outweigh its anticompetitive effects.

Does the JV constitute a "naked" agreement among competitors, or does it involve appropriate restraints within the scope of a legitimate JV? Does it impose so-called ancillary constraints on the venture itself or its members? What standard of review applies to such restraints? Does the size or market footprint of a JV make it "too big" to be acceptable? What practical steps can each company take to manage and limit information sharing? Antitrust counsel will need to address these and other questions concerning any proposed JV.

Guidance in this area is a mix of notable court cases and federal guidelines. Agency publications include the Antitrust Guidelines for Collaboration Among Competitors issued by the FTC and guidelines concerning intellectual property and healthcare issued by DOJ. In AAC v. Alston and NCAA v. Alston, the Ninth Circuit found certain NCAA rules concerning athlete compensation violated the antitrust laws. The Supreme Court's decision on appeal will significantly impact antitrust analysis of joint ventures in the future.

Listen as our authoritative panel analyzes the pros and cons of collaborative JVs from an antitrust perspective and potential sources of liability. The panel will also discuss agency guidance and recent antitrust case law concerning JVs.

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Outline

  1. Competitive benefits of JVs and other business collaborations
  2. Antitrust issues
    1. JV must be legitimate, not a "naked" agreement among competitors to collude
    2. Competitive restraints placed on the venture itself or its members: standard of review
    3. Analysis of market footprint and whether a business combination is "too big" to be acceptable
    4. Information sharing
  3. AAC v. Alston and NCAA v. Alston, and other recent case law
  4. Federal guidance

Benefits

The panel will review these and other key issues:

  • What is a "naked" agreement?
  • What kinds of competitive restraints are acceptable within a JV and which are not?
  • How does the size and footprint figure into the antitrust analysis of a JV?
  • What steps should a JV take to control information sharing?

Faculty

Kazmerzak, Karen
Karen Kazmerzak

Partner
Sidley Austin

Ms. Kazmerzak, a former FTC attorney, has a broad practice counseling clients regarding antitrust matters involved in...  |  Read More

Ullman, Howard
Howard M. Ullman

Of Counsel
Orrick Herrington & Sutcliffe

Mr. Ullman is a member of the Firm's Litigation and the Antitrust and Competition Groups. He focuses his...  |  Read More

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