In this CLE session, Douglas Ross, chair of Davis Wright Tremaine's litigation practice and a member of the governing council of the ABA's Antitrust Section, discussed antitrust issues with which every business lawyer should be familiar. Topics included the following:
- The Department of Justice recently sued Google, Apple, and other Silicon Valley firms for entering into broad agreements not to hire each other's employees. When are agreements not to hire or solicit employees lawful? When do they cross over into illegal collusion?
- Interlocking directorates prohibit competitors from sharing common directors or officers, with some exceptions. Must the director on your board who understands the industry well because he or she sits on the board of a competitor step down? Who is a "competitor" for these purposes?
- Joint ventures and acquisitions of less than 100 percent of a company are common in some industries. When is a joint venture legitimate and when is it simply a price fixing conspiracy? If your firm owns less than 50 percent of another company, can the two companies set price together? Does increasing the percentage ownership to 51 percent make a difference?
- Before one company acquires or merges with another, it may have to file a notice with the antitrust enforcement agencies under the Hart-Scott-Rodino Act. If the government takes no action after an HSR filing, can it still sue after the deal is complete to undo the transaction? If you do not have to submit an HSR filing, can the government investigate and sue to stop it anyway?
- Executives and consultants often use the "wrong" words when analyzing a transaction. What words spell trouble? If your documents are filled with promises to "dominate" the market, or "leverage" your market power, is the deal dead? What should you do with those documents?
- The Department of Justice urges companies to report antitrust violations under the corporate leniency program. What is this program? Is self-reporting a good idea? View the presentation slides (PDF)