The attorneys comprising Schulte Roth & Zabel’s Antitrust and Trade Practices Group have extensive and varied experience in all areas of federal and state antitrust and unfair competition law. When the firm’s business transactions lawyers structure a domestic or cross-border merger, acquisition or joint venture—and SRZ has represented both buyers and sellers in some of the most high-profile transactions of recent years—our antitrust lawyers are consulted to evaluate the antitrust risk. The lawyers analyze any of a wide range of business practices with the goal of identifying and avoiding any potential antitrust challenges or unfair business practice charges.
For clients who find themselves the target of an antitrust investigation, the defendant in a civil or criminal enforcement action or a private civil suit, or who believe themselves to be the victim of an unfair business practice or a violation of antitrust laws, our antitrust litigators stand ready to represent them. Our antitrust lawyers have represented clients in connection with investigations by the Federal Trade Commission, the U.S. Department of Justice Antitrust Division and state attorneys general, including assisting in responding to subpoenas and civil investigative demands, as well as to information and document requests, representing clients in all phases of grand jury matters, and appearing in numerous federal and state courts throughout the country, in both agency and private litigations, involving the full range of antitrust issues and a wide variety of industries.
SRZ is one of the leading firms assisting clients with Hart-Scott-Rodino (HSR) pre-merger analysis and notifications, having handled hundreds in recent years. We have represented clients in a wide range of industries, including financial services, automotive, manufacturing, retail and telecommunications. Our antitrust lawyers regularly counsel clients on the international issues raised by potential mergers and acquisitions, and maintain extensive relationships with leading firms in all jurisdictions that have active antitrust merger review regimes. We have assisted clients in obtaining pre-merger clearance from competition authorities in the European Union, Argentina, Austria, Brazil, Canada, China, Czech Republic, Finland, France, Germany, Ireland, Israel, Italy, Japan, Macedonia, Mexico, Poland, Russia, Serbia, South Africa, South Korea, Sweden, Switzerland, Taiwan, Turkey and Ukraine.
Counseling and Advice
Representing clients in antitrust investigations and litigations is only part of what we do. Equally, if not more, important is the advice we provide clients on how to avoid antitrust problems before they arise. Bringing a “litigator’s perspective” to their analysis, our antitrust attorneys work side-by-side with our transactional lawyers to ensure that M&A deals are structured in such a way as to minimize any potential anticompetitive effects that might result in the transaction being challenged. Post-transaction, our antitrust lawyers remain in the picture, developing antitrust compliance policies and evaluating proposed business practices that might subject the client to governmental scrutiny or a private antitrust claim, and, if necessary, working with the client to modify the proposed practices.
Mergers and Acquisitions
Clients often seek our antitrust advice as soon as they are considering a transaction. We provide antitrust guidance every step of the way. Initially, our antitrust lawyers perform due diligence on the client's behalf to determine the antitrust risk posed by a proposed transaction. Even before a client expends substantial resources to complete due diligence, our antitrust lawyers often identify whether the transaction likely will (1) require compliance with the notification and mandated waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act; (2) trigger antitrust scrutiny (and the potential scope and length of a government investigation) and (3) require remedial measures, such as divestitures. During the negotiating process, our antitrust lawyers work with the firm's corporate lawyers to structure the transaction in such a way as to minimize concerns about potential anticompetitive effects and reduce the likelihood of an extensive government antitrust investigation or challenge. Together, the team drafts the purchase or merger agreement in a manner to transfer or minimize our client's antitrust risk. We also advise clients on the parameters of permissible bidding and due diligence activities, including the permissible scope of information sharing with competitors, and counsel clients regarding compliance with the HSR and global merger control waiting periods so that the parties do not engage in impermissible “gun jumping” activities. As a part of our merger control and antitrust practice, we routinely analyze the applicability of merger control laws of over 100 jurisdictions; coordinating compliance with, and obtaining timely clearance under, those laws that apply to any given transaction.
Simultaneously, when appropriate our antitrust lawyers begin to prepare for an inquiry. After the deal is signed, our antitrust lawyers are proactive. They often persuade the agencies to allow the transaction to close without delay, or work with the agencies to address their concerns and minimize the scope and length of their investigations. If an agency insists upon conducting an antitrust investigation, we draw on our deep experience to guide our clients through the process as expeditiously as possible.
Private Equity Funds
Our private equity fund clients frequently seek our advice on antitrust issues relating to companies they are considering acquiring or investing in. In addition to analyzing the pertinent industry, our antitrust attorneys assist in the performance of due diligence on the target by evaluating any pending or threatened antitrust litigation against it. By doing so, we help our clients to make informed decisions about the antitrust risks such companies may face.
Hedge Funds
Our antitrust lawyers advise our hedge fund clients before they invest regarding the likelihood that announced mergers will trigger antitrust investigations, require divestitures or other remedial measures, or receive agency clearance. Using only publicly available information, we can conduct an antitrust analysis similar to the type of antitrust due diligence analysis that we perform for our clients contemplating mergers or acquisitions. With the benefit of our research and experience, our hedge fund clients can invest with the best available information about the antitrust risks of a given transaction.
Activist Funds
The antitrust laws create many pitfalls for unwary activist investors. We anticipate these risks and help activist investors to achieve their goals without running afoul of the antitrust laws. We advise activist investors on the need for and ideal timing of filings under the HSR Act and whether their proposed business strategy for the target likely will raise antitrust issues or trigger costly government investigations or litigation.
Government Investigations
Together with lawyers from our white-collar criminal defense and regulatory groups, our antitrust lawyers defend clients subject to criminal or civil government investigations conducted by the FTC, the DOJ Antitrust Division and state attorneys general. We also represent clients in connection with the DOJ’s corporate leniency program, through which, if the client is the first conspirator to self-report, the client is eligible for amnesty from criminal penalties and a reduction in civil damages exposure from treble to single damages. Many of these matters are non-public.
Litigation
Although we strive to advise our clients on how to achieve their business goals without increasing their litigation risk, sometimes litigation is inevitable or a necessary tool. Our antitrust practitioners defend clients against claims such as monopolization, attempted monopolization, price-fixing, exclusive dealing, tying, refusals to deal and other challenges to product distribution practices, group boycotts and price discrimination.
In addition to defending clients against government claims in a civil, criminal, or administrative context, we also defend clients against private antitrust claims which frequently are filed in the aftermath of a government investigation. Even before an indictment or government lawsuit, public news of a governmental antitrust investigation often triggers private class action litigation. Working with lawyers from our white-collar, securities law regulatory enforcement and litigation groups, we have the depth and scope to defend companies from lawsuits brought by customers and consumers (individually and in class actions) in federal and state courts throughout the country.