Single-Firm Conduct: Mastering New DOJ Enforcement Guidance to Avoid Antitrust Violations

Navigating the Conflicting DOJ and FTC Standards

U.S. Dept. of Justice Report on Competition and Monopoly Released Sept. 8

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


Conducted on Tuesday, November 25, 2008

Program Materials

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.

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Outline

  1. Legal standards for violations of Section 2 of the Sherman Act
  2. Risk of deterring pro-competitive conduct and aggressive competition versus the risks under enforcement
    1. Type I risks
    2. Type II risks
  3. Various tests for Liability under Section 2
    1. Disproportionality test, profit-sacrifice test, consumer welfare/balancing test, no economic sense test
    2. Conduct-specific tests and safe harbors
  4. Risks posed by specific practices
    1. Bundling products
    2. Exclusive dealing
    3. Tying
    4. Pricing and discounts
  5. 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
Janet L. McDavid

Partner
Hogan & Hartson

She focuses on antitrust, competition, and trade regulation, with a particular emphasis on government investigations,...  |  Read More

Charles T. (Chris) Compton
Charles T. (Chris) Compton
Partner
Wilson Sonsini Goodrich & Rosati

He has overseen the antitrust regulatory work in over 900 mergers, acquisitions, and joint ventures, many of which...  |  Read More

Kyle Andeer
Kyle Andeer
Attorney Advisor to Commissioner Thomas Rosch
Federal Trade Commission

He advises FTC Commissioner Rosch on competition issues. Before joining the Commissioner's office, he was in private...  |  Read More

Joseph G. Krauss
Joseph G. Krauss

Partner
Hogan & Hartson

He focuses on antitrust and economic regulation, with an emphasis on merger and acquisition counseling and litigation...  |  Read More

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