Antitrust Compliance: Legal Services for Business Risk and Investigations

Section 1 of the Sherman Act prohibits unreasonable restraints of trade, while Section 2 addresses monopolization and related conduct. Horizontal price-fixing, bid-rigging, and market-allocation agreements are generally per se unlawful.

Other arrangements require analysis of their purpose, market conditions, and competitive effects. Contract and communication reviews can identify potential issues under antitrust and competition law.

A competitor meeting or unusual pricing pattern does not establish a violation by itself. An assessment examines participants, communications, business decisions, and evidence of potentially unlawful coordination.

Counsel may conduct interviews and evaluate applicable legal standards. Companies should consider attorney-client privilege before sharing investigative findings outside the appropriate legal team.

Shared research, production, and distribution arrangements require assessment of their actual structure. Restrictions reasonably necessary for legitimate integration may receive different treatment from standalone agreements to fix prices or divide markets.

The DOJ and FTC withdrew their 2000 competitor collaboration guidelines in December 2024. In February 2026, the agencies sought public input on potential replacement guidance, so the withdrawn guidelines should not be treated as current safe harbors.

Partnership discussions may involve pricing plans, customer terms, bids, or production forecasts. Sharing such information can raise concerns when it affects competitors' independent decisions.

A confidentiality agreement does not automatically make the exchange lawful. Depending on the circumstances, restricted review teams or limits on access may address specific risks without establishing compliance.

Independent pricing differs from agreements among competitors to coordinate prices, bids, or customers. Exclusive dealing and tying arrangements require analysis of the applicable legal standard and market circumstances.

Relevant factors may include market power, competitive foreclosure, and legitimate business justifications. Contract reviews should identify restrictions affecting independent commercial decisions.

An employee complaint may justify fact-finding without proving unlawful conduct. The initial review should identify:

• Individuals involved in relevant decisions.
• Communications or agreements under examination.
• Dates and duration of the suspected conduct.
• Products, customers, and markets affected.
• Relevant documents and electronic records.

When litigation or an investigation is reasonably anticipated, applicable preservation duties may require changes to routine deletion practices.

The DOJ Antitrust Division handles civil and criminal antitrust enforcement. Criminal investigations frequently concern alleged price-fixing, bid-rigging, or market-allocation conspiracies.

The FTC exercises civil enforcement authority under statutes within its jurisdiction. State attorneys general may enforce state competition laws and federal law where authorized.

A subpoena or civil investigative demand creates different obligations from an informal inquiry. Related government and internal investigations may involve document production, factual review, and assessment of available objections.

Companies should identify relevant emails, messages, contracts, and employees when preservation obligations arise. Internal interviews can clarify the conduct under examination and the individuals involved.

Company counsel should explain whom they represent and the confidentiality of employee communications. Voluntary disclosure requires separate analysis because sharing privileged material may create waiver issues.

Potential criminal exposure may also require criminal antitrust review, including applicable leniency eligibility requirements.

The Sherman Act addresses unreasonable trade restraints and monopolization. The Clayton Act covers specified anticompetitive practices and transactions, while the FTC Act addresses unfair methods of competition within the Commission's authority.

State statutes operate alongside federal law, subject to applicable jurisdictional and preemption principles. For example, New York General Business Law § 340, known as the Donnelly Act, addresses unlawful arrangements restraining competition.

Federal and state claims may involve similar conduct, but their requirements and remedies can differ.

Internal findings may justify revising agreements, limiting sensitive information access, or addressing substantiated misconduct. Appropriate measures depend on the evidence and applicable obligations.

Executive training can address competitor meetings, partnership approvals, pricing decisions, and information-sharing restrictions. Broader regulatory compliance reviews may help coordinate these activities with corporate oversight procedures.