Conduct that draws the most risk
Agreements among competitors to fix prices or rig bids are treated as illegal without any inquiry into their business justification, and they can be prosecuted criminally. Agreements to divide customers or territories are treated in a similar way. Agreements among employers not to hire each other's workers or to hold down wages have also drawn enforcement attention and private suits. Sharing competitively sensitive information, such as future pricing, through a trade association or a common pricing software provider can create risk even without an explicit agreement, and this area has become actively litigated. Other arrangements, including many exclusive dealing and distribution terms, are judged by weighing their effects on competition, and they are lawful in many settings.
Size alone is not the violation
Being large or successful does not by itself violate antitrust law. Claims against a single company usually require showing that it has substantial market power and used exclusionary conduct to gain or keep it, rather than simply competing well. Vertical restrictions such as minimum resale prices are judged under a balancing approach in federal law, but state law can treat them differently, and New York has its own rule limiting the enforceability of some resale price terms. Mergers can also be challenged when they are likely to reduce competition substantially. Whether particular conduct crosses the line usually depends on the market and the facts, which is why early advice is valuable.
If something may have happened
If a competitor raises prices or other sensitive topics, end the conversation, leave if necessary, and tell your company's counsel promptly, who can decide how it should be documented. Do not delete emails or messages related to the incident. If you learn that an agreement may already exist, an internal review led by counsel can determine the facts and preserve privilege. Timing matters because of how leniency programs work for cartel conduct. We conduct internal reviews, advise on whether to report, and help companies build training and policies around trade association participation, hiring practices, and pricing information.
