Practice Areas

Antitrust & Consumer Protection

The firm has deep experience with antitrust and competition issues in both regulated and non-regulated industries. We have litigated antitrust and competition matters in courts and before administrative agencies, working extensively with economic and industry experts. We understand how competition analysis must be developed in order to support innovation and entry by both large and small companies, and to gain long-run efficiencies for the economy as a whole by allowing high fixed-cost industries the opportunity to earn returns of and on their sunk capital. We have advised foreign and domestic clients on Hart-Scott-Rodino reporting requirements and have handled the filings and related informal advocacy necessary to gain merger clearance. We have also represented parties opposing transactions during HSR review, and purchasers of divested assets. We are proven reliable collaborators with other law firms, including firms without a DC office that have a special need for antitrust counsel to supplement their services to their clients.

The firm has brought these understandings and capabilities to bear in all of the contexts in which competition issues arise: 1) defending and prosecuting antitrust actions in court and administrative regulatory proceedings, including trying court actions to judgment; 2) assisting clients with competition issues that arise in mergers and acquisitions and other business activity; 3) developing antitrust compliance programs and conducting internal investigations; 4) responding to criminal and civil investigations by state and federal authorities; and 5) helping clients that operate in or are served by regulated industries successfully utilize competition law and principles in the context of state and federal regulation to realize business objectives.

Among the issues we have dealt with are monopolization; efficiency defenses, including free riding; critical loss; refusals to deal and essential facilities; vertical foreclosure; raising rivals’ costs; tying; bundled rebates; tacit collusion, and unilateral effects. Our industry experience is broad, and includes transportation, energy, health care, insurance, and manufacturing. We have represented:

  • a chemical company named as a defendant in horizontal price fixing cases;
  • a Japanese chemical manufacturer, and its United States subsidiary, as to which plaintiffs alleged world-wide market allocation and price-fixing among industry members;
  • a medical devices manufacturer accused of vertical price-fixing;
  • an electric utility accused in several cases of pursuing capacity trading activities that violated competition/antitrust laws;
  • a Class I railroad in antitrust actions brought by connecting railroads, initially before the Interstate Commerce Commission, and on appeal to the United States Court of Appeals and the Supreme Court;
  • an insurance company alleged to have conspired to restrict the terms on which insurance would be offered;
  • a physicians' association accused of conspiring to deprive another physician of hospital privileges;
  • a manufacturer of office products accused of offering bundled rebates in violation of the Sherman and Clayton Acts;
  • a computer manufacturer in lawsuits alleging a range of antitrust claims, including monopolization, attempted monopolization, and illegal tying/bundling arrangements;
  • a manufacturer and its parent corporation sued for alleged monopolization and attempted monopolization of the distribution of surgical devices;
  • Class I railroads in all of the large rail merger proceedings since the partial deregulation of the industry in 1980;
  • a health insurer urging the Antitrust Division to issue a second request because of a territorial allocation involved in a merger of two other insurers;
  • a formerly regulated and antitrust-exempt industry in the design of antitrust compliance programs for members of the industry and its trade association;
  • a trade association of electric utilities in the preparation of a major joint statement by three leading economists on stranded costs;
  • electricity, railroad, and water companies seeking to assure that regulation of competition issues is based on sound economic principles and analysis.

Our close integration of legal and economic analysis, and strategic approach to antitrust and competition matters, is based on our comprehensive understanding of the way in which the federal government addresses antitrust concerns. Our attorneys have dealt with antitrust matters while in high-level positions at the U.S. Congress and federal agencies. Positions previously held by Harkins Cunningham attorneys are: Deputy General Counsel of the Federal Trade Commission; Special Counsel for Global Competition in the Chairman's Office at the Federal Trade Commission; Staff Counsel to the United States Senate Commerce Committee; Deputy Administrator for Policy and Assistant Administrator for Enforcement in the Economic Regulatory Administration at the U.S. Department of Energy; and head of the National Advertising Division in the Bureau of Consumer Protection at the Federal Trade Commission.

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