Key Factors to Consider When Selecting an Antitrust Attorney

Yes. Antitrust liability attaches to agreements, not just written contracts. Conversations between competitors about pricing, market allocation, customer steering, or bid-rigging can constitute an illegal agreement under Section 1 of the Sherman Act if the parties reach a meeting of the minds to restrain competition. Consider a scenario in which sales personnel from two competing firms meet at an industry conference and discuss market conditions and pricing expectations. If the discussion crosses into an understanding to avoid undercutting each other's prices, both companies face exposure to criminal prosecution, civil damages, and injunctive relief. Courts focus on the conduct and the parties' intent, not on formality. In practice, these cases are rarely as clean as the statute suggests, and juries often infer agreement from circumstantial evidence, such as parallel pricing, suspicious timing, or incriminating email language.

The Hart-Scott-Rodino Act requires premerger notification to the Federal Trade Commission and Department of Justice when a transaction meets specified size thresholds (adjusted annually; currently around $111 million for 2024). Failure to file when required can result in criminal penalties and forced divestiture. Beyond the filing requirement, the agencies evaluate whether the merger would substantially reduce competition in any relevant market. Horizontal mergers, particularly those combining close competitors, receive heightened scrutiny. Vertical mergers and those involving firms with significant market shares trigger detailed economic analysis. The review process typically takes 30 days for initial review, with potential extensions if the agencies issue a Second Request for additional documents and testimony.

The agencies currently emphasize digital markets, healthcare mergers, labor market conduct, and supply chain vulnerabilities. Tech platforms face particular scrutiny for exclusionary conduct and merger activity. Healthcare enforcement targets hospital consolidation and pharmaceutical pricing arrangements. Labor market cases involve allegations that competitors have agreed not to solicit each other's employees or have shared wage information. These priorities mean that companies in those sectors face elevated enforcement risk and should ensure their compliance programs address the specific conduct the agencies are investigating.

Antitrust cases in the Southern District of New York and Eastern District of New York follow the Federal Rules of Civil Procedure and often involve extensive discovery, expert testimony, and economic analysis. The SDNY has a substantial docket of antitrust cases and judges experienced in complex competition litigation. Early motion practice, including motions to dismiss on the basis that conduct is not anticompetitive as a matter of law, can be dispositive. The discovery phase typically involves production of internal emails, pricing data, and customer communications, which means that poor document retention or incriminating email language can devastate a defense. Trials are rare; most cases settle or resolve through summary judgment.

A robust program includes training for employees who interact with competitors or set pricing, clear policies on competitor communications and pricing decisions, and a process for legal review of sensitive transactions and collaborations. Document retention policies should ensure that relevant materials are preserved if litigation arises. Pricing decisions should be documented with business rationale, not competitive considerations. Joint ventures and industry associations should have governance structures that prevent anticompetitive discussion. Our antitrust practice advises clients on designing and implementing these programs to fit their industry and risk profile.

You should engage antitrust counsel at the earliest stage of merger planning, before detailed negotiations begin. Early analysis clarifies filing obligations, identifies potential competitive concerns, and allows time for remedial steps, such as divestitures or behavioral commitments. Waiting until the deal is substantially negotiated to conduct antitrust review often leaves limited options if the agencies signal opposition. A preliminary antitrust assessment takes weeks, not months, and can save months of delay and millions in remedial costs later.

Antitrust enforcement continues to expand in scope and intensity. Organizations that treat antitrust compliance as a routine legal obligation rather than a competitive constraint often find themselves defending against enforcement action that could have been prevented. The strategic question is not whether antitrust law applies to your business, but whether you have identified the specific conduct and relationships that carry the highest risk in your industry and market. Evaluate your current merger activity, competitor relationships, and pricing practices through an antitrust lens now, before an agency investigation forces the analysis under pressure.