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Proskauer Rose LLP's Antitrust and Trade Regulation Practice includes litigation on behalf of both plaintiffs and defendants in private actions. For more information about this practice area, contact:
We also have an active practice in government investigations, civil suits, and criminal proceedings. Our practice includes appearances before the Department of Justice and the Federal Trade Commission in connection with merger investigations, and regular counseling in all areas of antitrust law, including price discrimination, licensing, distribution and marketing issues, trade association activities, and joint venture and pre-merger analysis.
In recent years, we have represented numerous firms and individuals in Antitrust Division grand jury investigations of price-fixing and bid-rigging. In most of these cases, including a four-year investigation in which target letters were issued, the investigations concluded favorably without action against our clients. In the others, we obtained leniency agreements, early negotiated settlements, or immunity for individuals. Industries in which firms have sought our representation in criminal matters include pharmaceuticals, antiques, advertising displays, capacitor components, hardware sold to utilities, and military insignia.
We regularly represent companies in industries such as pharmaceuticals, entertainment, and electronics in which the relationship between intellectual property rights and antitrust law is a critical factor in their prospects for growth. Our work in this area occurs in private litigation, government investigations and lawsuits, and counseling.
We frequently represent firms, as merger participants or as third parties, in merger reviews by the Antitrust Division of the Department of Justice and/or the Federal Trade Commission. These representations have included intra-industry acquisitions by tender offer, which we have successfully shepherded through federal agency review within the 15-day waiting period, as well as a number of multijurisdictional mergers in which we coordinated counsel and regulatory filings around the world.
We have raised substantial issues with the Antitrust Division and the Federal Trade Commission concerning the mergers of competitors or suppliers, leading to issuance of second requests.
We have developed compliance programs for many firms covering antitrust law and other issues, and regularly provide antitrust training for clients' employees.
We have counseled a number of firms on strategies to minimize antitrust risk in implementing suggested resale or advertised price policies, restructuring their distribution networks, and negotiating strategic licensing or other collaborations.
Whether we're counseling or litigating, we bring an understanding that competition issues are business issues. To fully appreciate the business ramifications of every question arising under competition law, our antitrust lawyers work closely with our clients' business personnel as well as our own corporate lawyers.
Among the matters in which we have participated in recent years are the following:
- We brought federal and state antitrust claims for Conmed against Johnson & Johnson alleging illegal bundling, exclusive dealing, monopolization, and other restraints of trade in the medical devices industry. We reached a successful settlement of these claims prior to trial.
- We represented Apothecon, Inc., a former subsidiary of Bristol-Myers Squibb, in litigation against Barr Laboratories over Barr's interference with Apothecon's marketing of a generic version of Coumadin&8482; in competition with Barr's own generic.
- We represent Bear Stearns in related litigations brought in New York and California against the major prime brokers concerning naked short sales. These actions allege that the corporations' stock prices have been adversely affected by naked short selling and that the prime brokers have intentionally failed to deliver stock in connection with short sales. In effect, the various suits allege that the prime brokers have caused naked short selling by failing to fulfill their obligations in locating and delivering borrowed shares when their customers are selling short.
- We represented Depository Trust and Clearing Corporation ("DTCC") and its relevant subsidiaries in an action in federal court concerning alleged monopolization of services related to the tracking and confirmation of failed fixed-income securities trades. The action alleges that DTCC attempted to exclude a competitor from some markets related to these services.
- We represent DTCC in an additional monopolization claim against it that was dismissed in federal court. This action was brought by a transfer agent which provided transfer services for the securities issues that were its clients. The agent charged DTCC with violating Sections 1 and 2 of the Sherman Act, alleging that DTCC used its market power and influence to exclude smaller transfer agents from the group of agents DTCC appointed as members of its Fast Automated Securities Transfer program, which assists DTCC with its securities depository and transfer services. Though the action was dismissed, plaintiff has sought permission to file an amended complaint.
- We represent executives from major airlines in the price-fixing investigations currently being conducted by the Department of Justice.
- On behalf of a generic drug manufacturer, we brought a motion for a preliminary injunction under the Hatch-Waxman Act, the Administrative Procedures Act, and federal and state antitrust laws. In challenging the listing of pharmaceutical product patent in the FDA's Orange Book, we made new law at the District Court level, using the Hatch-Waxman Act to shorten the statutory stay of FDA approval for our client's generic product. When the Federal Circuit vacated the ruling - making new law finding no private right of action - we succeeded in getting the Federal Trade Commission to require the delisting of the patent, thus speeding FDA approval of our client's product.
- We successfully represented Simon & Schuster in the only industry-wide Robinson- Patman proceedings brought by the federal government in 20 years. The Federal Trade Commission charged six of the seven largest book publishers with discrimination in prices and promotional allowances and services among their retail bookseller customers. The FTC ultimately dismissed the lawsuits. We continue to have an active, broadly based litigation and counseling practice involving the Robinson-Patman Act.
- We represented the National Basketball Association in defeating claims by television station WGN-Chicago and the Chicago Bulls organization that the League's national television policies constituted a restraint of trade in violation of the antitrust laws. The litigation included three trials and two appeals to the 7th Circuit Court of Appeals over a course of six years.
- We also represented the National Basketball Association in its successful defense of a claim by the San Diego Clippers charging the NBA with restraint of trade for its enforcement of team location rules.
- We submitted an amicus brief to the 2nd Circuit Court of Appeals on behalf of the Motion Picture Association of America in support of an appeal by Twentieth Century-Fox and one of its sales managers of their convictions for criminal contempt of the so-called "Paramount decrees" governing the distribution of motion pictures.
- We represented SCM Corporation in a 14 month-long jury trial of its monopolization claims against Xerox Corporation.
- We represented Biovail Corporation, a full-service pharmaceutical company, in a series of nine antitrust suits involving claims that Biovail improperly sought to suppress competition in the market for certain pharmaceutical products used in the treatment of hypertension and angina.
- We defended a pharmaceutical company in a series of related federal and state antitrust proceedings alleging that a private agreement had the effect of delaying the launch of a generic version of Cardizem® CD, a calcium channel blocker, until patent infringement litigation was resolved. We also handled a settlement of a related FTC administrative complaint with an unprecedented statement by the Commission of no harm to consumers.
- We represented Bristol-Myers Squibb in claims it brought against a world-wide cartel of vitamins producers. After Daubert hearings, recovery was achieved in multiples of the earlier class action settlement, which client had opted out of. Related proceedings involved the EU and the international reach of U.S. antitrust laws.
- We represented a health care company in a case that involved ERISA, RICO and antitrust matters, and an 88,000-member class action.
- We successfully defended Major League Soccer in an antitrust class action by an association of MLS players, challenging the terms and conditions under which professional soccer players are employed. MLS is not a traditional, franchise-based sports league, but is structured as a single entity, and the litigation, which challenged the structure of the league, had far-reaching implications for all sports leagues. We won a jury verdict on issues of monopolization.
- We successfully represented The Laird Group PLC before the Federal Trade Commission in the $485 million sale of its Laird Security Systems/Amesbury division to Lupus Capital PLC, and obtained clearance of the acquisition without issuance of a Hart-Scott-Rodino Second Request.
- We also successfully represented The Laird Group PLC before the U.S. Department of Justice Antitrust Division in its $89.75 million acquisition of Cushcraft, Inc., a privately held designer and manufacturer of advanced communication antennae and accessory products, and obtained clearance of the acquisition without issuance of a Hart-Scott-Rodino Second Request.
- We successfully represented Ochsner Health System in its acquisition of Kenner Regional Medical Center in Kenner, LA; the Meadowcrest Hospital in Gretna, LA; and the Memorial Medical Center in New Orleans, LA from Tenet Healthcare Corporation. The transaction was significant because the analysis of the New Orleans hospital market was significantly impacted by the changes to the city's population and demographics following Hurricane Katrina.
- We successfully represented Andrx Corporation before the Federal Trade Commission in its $1.9 billion acquisition by Watson Pharmaceuticals Inc. to create the third largest generic pharmaceutical company in the United States.
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