Exclusionary Business Conduct Under Antitrust Laws

Navigating the Evolving Standards and Enforcement for Refusals to Deal, Predatory Pricing and Other Activities

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

Conducted on Tuesday, December 18, 2012
Recorded event now available

This CLE webinar will provide counsel with a review of recent antitrust regulatory enforcement and case law developments to analyze business practices at risk for being deemed anti-competitive violations of antitrust laws.


Recent regulatory activity demonstrates that the FTC and DOJ Antitrust Division are stepping up investigations and lawsuits on impermissible exclusionary conduct, in which a company can seek gains in market power through conduct that weakens rivals or excludes them from the market.

Regulators can look for exclusionary conduct in many forms: refusals to deal, "standards essential" patent hold-ups, predatory pricing, tying and bundling. Companies with prominent market shares need to be aware of enforcement agencies' scrutiny, such as recent investigations of Google and Samsung.

As companies develop business practices and enter agreements with customers or suppliers and other parties, counsel should analyze deals under recent case law to determine potential liability under Section 2 of the Sherman Act or Section 5 of the FTC Act.

Listen as our panel of experienced antitrust attorneys examines exclusionary conduct under antitrust law, explains business practices that have been identified as exclusionary, and reviews current FTC and DOJ enforcement activities and recent case law. The panel will offer guidance to counsel on whether certain business practice efficiencies are likely to trigger antitrust scrutiny.


  1. Exclusionary conduct that can potentially violate antitrust law
    1. Review of forms: refusal to deal, patent hold-up, predatory pricing, tying, bundling
    2. Sherman Act, Section 2
    3. Federal Trade Commission Act, Section 5
  2. Case law update
    1. Developments following the Supreme Court Verizon v. Trinko decision
    2. ZF Meritor L.L.C. v. Eaton Corp.
    3. American Airlines suit against Sabre, Orbitz and Travelport
    4. Apple private class action monopolization cases
  3. DOJ/FTC enforcement developments
    1. “Standards essential” investigations: Google, Samsung
    2. Refusals to deal: In re Pool Corp.


The panel will review these and other key questions:

  • What kind of company conduct is at risk of being the subject of an antitrust investigation or suit?.
  • How are companies' uses of standards essential patents being investigated by the FTC and DOJ?
  • How have courts analyzed exclusionary standards in the years since the Supreme Court's decision in Verizon v. Trinko?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Tyler A. Baker, Partner
Fenwick & West, Mountain View, Calif.

He focuses on complex litigation, with an emphasis on antitrust and intellectual property law. He represents plaintiffs and defendants in civil antitrust trials and targets of antitrust investigation. He advises on antitrust issues, including pricing and distribution practices, joint ventures, premerger notification, and merger reviews by the Department of Justice and the Federal Trade Commission. He represented Leegin Creative Leather Products from trial through the Supreme Court decision that overruled the long-standing per se rule against vertical price agreements.

Glenn B. Manishin, Partner
Troutman Sanders, Washington, D.C.

He concentrates his complex litigation practice in antitrust, telecommunications and technology policy. He has practiced antitrust law since working at the DOJ Antitrust Division in connection with the AT&T divestiture. He has participated in virtually all of the most important regulatory, judicial and legislative matters affecting telecommunications and the Internet for the past 30 years.

Adam J. Di Vincenzo
Gibson Dunn, Washington, D.C.

His practice focuses on government antitrust investigations, the antitrust aspects of mergers and acquisitions, and civil antitrust litigation. He has represented numerous clients before antitrust and competition enforcement authorities in the United States and other jurisdictions, and also regularly counsels clients on complex antitrust, regulatory, and compliance issues.


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Antitrust Law Advisory Board

Clifford H. Aronson


Skadden Arps Slate Meagher & Flom

W. Joseph Bruckner


Lockridge Grindal Nauen

Gregory J. Casas


Greenberg Traurig

David B. Goroff


Foley & Lardner

Allen P. Grunes

Co-Founder and Attorney

The Konkurrenz Group

Robert N. Kaplan


Kaplan Fox & Kilsheimer

Christopher J. Kelly


Mayer Brown

James J. Long


Briggs and Morgan

Milton Marquis


Cozen O'Connor

Janet L. McDavid


Hogan Lovells

Kevin D. McDonald


Jones Day

Daniel F. McInnis


Thompson Hine

Saul P. Morgenstern


Kaye Scholer

Douglas Rosenthal


Constantine | Cannon

M. Sean Royall


Gibson Dunn & Crutcher

Joseph J. Tabacco, Jr.


Berman DeValerio

Douglas M. Tween



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