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Antitrust & Competition

Our antitrust and competition law practice has four major areas of focus:

First, we represent clients in merger and nonmerger investigations in the United States before the Antitrust Division of the Justice Department and the Federal Trade Commission (FTC), where many of our antitrust partners have worked, and in the European Union before the European Commission’s Directorate General for Competition (DG Comp).  As competition law enforcement has spread around the globe, so has our experience in advising clients on merger and non-merger investigations in other jurisdictions, including EU member states, China, Japan, and Korea.

Second, building on the firm’s strong regulatory practices, we represent clients in many industries that are regulated or have been deregulated in recent decades. We regularly advise clients on antitrust issues as they affect the electric utility and power generation, telecommunications, airline, railroad, trucking, pipeline, maritime, financial services, and other industries.

Third, we represent clients as defendants in private class actions, other complex treble-damage litigation, and parens patriae cases brought by state attorneys general. We are also very experienced with handling state court class actions based on the unfair trade practice and consumer protection theories that plaintiffs often use to avoid federal court. Our antitrust litigators appear in courts across the country.

Fourth, our white-collar criminal defense practice—one of the most significant in Washington and New York—features lead lawyers who had extensive experience in the Justice Department before entering private practice.  These white-collar attorneys have defended corporations and top management in several recent high-profile criminal antitrust investigations and prosecutions.

Our antitrust practice comprises the following:

Mergers & Acquisitions
A mainstay of our antitrust practice has been representing clients in mergers, acquisitions, and joint ventures raising competitive issues. We work closely with clients to identify potential problems early, structure transactions to avoid or minimize them, and then handle merger reviews as expeditiously as possible. We regularly appear before the FTC and the Antitrust Division of the Department of Justice (DOJ) in the United States and the European Commission’s Directorate General for Competition in the European Union. Many complex transactions also require approvals by state attorneys general federal regulatory agencies with merger approval authority.

When problems cannot be resolved amicably, we defend transactions in federal court injunction proceedings and FTC administrative hearings.

We have close relationships with many economic consulting firms and academic experts who are essential to these kinds of cases. We also regularly manage the multiple non-US filings and competition reviews required in most large transactions.

International Antitrust
Premerger notification and review originated in the United States, but has become standard practice worldwide. Just so have antitrust rules regulating business practices, particularly those of companies with large market shares.

Our antitrust lawyers have substantial experience managing the many complexities of parallel premerger proceedings and business-practice investigations by foreign competition authorities. We have prepared premerger filings, defended investigations, and supervised teams of local counsel in all the major countries with active antitrust regimes. European filings and investigations draw on our London and Brussels offices, as well as our Washington base.

Complex Antitrust Litigation and Class Actions
We have long represented clients as defendants in private treble-damage class actions brought under the federal antitrust laws. We also have extensive experience on class certification issues, consolidation of multi-district cases, and other procedures governing complex litigation in the United States. 

More recently, as state governments have stepped up enforcement and the class action bar has devised strategies to avoid federal case law, we have developed capabilities in two related areas: representing defendants in parens patriae actions brought by state attorneys general and removing state cases to federal courts. Increasingly, the class action bar has brought cases in state rather than federal court, under state antitrust, unfair trade practice, and consumer protection theories. We have developed substantial experience in arranging removal, opposing certification of nationwide classes, defending against punitive damage claims, and creating new state law on exemptions and immunities.

Government Civil Investigation and Litigation
Representing clients in FTC and Antitrust Division nonmerger investigations and civil actions is a major feature of our practice. We also regularly represent clients in investigations by state attorneys general, including investigations by multistate task forces created by the National Association of Attorneys General (NAAG). 

Grand Juries & Criminal Prosecutions
Criminal antitrust investigations and prosecutions require a very different approach than civil investigations and actions. Our partners representing firm clients in this area not only have antitrust experience but broader experience in grand jury investigations and white-collar criminal prosecutions, including extensive trial experience.

Antitrust Compliance Counseling
Our extensive experience with governmental investigations, regulatory requirements, and defending antitrust lawsuits has taught us much about the specific antitrust compliance issues facing companies in many industries, including petroleum, chemical, electric power, surface and air transportation, defense contractors, pharmaceuticals, insurance, wireline and wireless telecommunications, food distribution and retailing, computer software, and data encryption. 

We provide the following types of antitrust compliance advice:

  • We regularly advise industry trade associations on such antitrust compliance issues as statistical reporting and information-gathering programs, ethical codes, participation in litigation and regulatory proceedings, and antitrust policy and competition law issues. We also file amicus briefs in antitrust cases of importance to our trade association clients, which include major associations in the insurance, pharmaceutical, and trucking industries.
  • We also represent a number of industry standards-setting organizations, including those developing standards governing electronic data exchange.
  • We work with our IP and transactions groups on intellectual property and technology licensing issues.
  • We counsel clients on structuring and operating joint ventures, including R&D, marketing, and production arrangements. We also advise on applying premerger reporting requirements to joint ventures.
  • We regularly design antitrust compliance programs for clients, including preparing antitrust guidelines, conducting antitrust audits and special investigations, and creating educational programs for corporate employees.
  • We periodically advise clients on applying antitrust exemptions in the airline, railroad, trucking, insurance, and other industries.
  • We also advise our foreign clients on applying US antitrust laws to their activities, including the reach of US jurisdiction.

Government & Recent Experience
Many of Steptoe's lawyers in the antitrust practice group have had government experience at the Antitrust Division and FTC:

The Antitrust Team 

Dave Roll focuses on mergers and acquisitions in the electric power and defense industries; class actions and other treble-damage actions, including extensive jury trial experience; government antitrust investigations including negotiation of consent decrees and Tunney Act proceedings; and representation of trade associations in the pharmaceutical and equine industries.

Bob Fleishman is active both in the mergers and acquisitions fields and in government civil and criminal investigations. In the transactions fields, his clients have included companies in the overnight delivery, aquaculture, and grocery businesses, among others. He has also represented clients in several acquisitions involving EU, as well as US, review.

Mark Horning focuses on defending class actions based on antitrust, unfair trade practice, consumer protection, and RICO theories. He has recently represented numerous automobile, homeowners, commercial property and liability, workers' compensation, and life insurers in such cases. He is the former chair of the Insurance Industry Committee of the ABA Antitrust Section and co-editor of the Insurance Antitrust Handbook.

Tony Epstein has significant experience representing telecommunications companies in US and European merger investigations, as well as in nonmerger civil investigations. He has also represented telecommunications and other companies in private antitrust cases.

Ken Ewing, recognized in the 2006 Global Competition Review’s Who’s Who Legal for Competition, represents clients with respect to mergers, acquisitions, and joint ventures, and defends government investigations and private litigation for clients that have included companies in the specialty chemicals, pharmaceuticals, transportation, airline, and gas pipeline industries. He also serves as general outside antitrust counsel to major US trade associations including pharmaceuticals and trucking. 

Tim Walsh focuses on antitrust and economic regulation issues, with an emphasis on regulated industries in the energy and transportation sectors.  He advises companies on business practices as well as mergers and acquisitions, including US and foreign country merger-review issues.  He has almost thirty years of experience in dealing with antitrust and other regulatory issues in the oil pipeline industry, including counseling clients about competition issues related to major joint venture projects and related regulatory questions, as well as pipeline mergers and acquisitions.

Ellen McNamara includes civil, criminal, and administrative litigation and counseling, with particular emphasis on antitrust matters, in her practice. Her recent antitrust work has included analyzing proposed acquisitions, joint ventures, and other cooperative activities; arranging advocacy before federal enforcement agencies on merger-related matters, including both opposition to and support of proposed mergers and acquisitions; and responding to second requests under the Hart-Scott-Rodino Act. She counsels numerous clients with respect to pricing, bidding practices, cooperative ventures, and trade association activities.

Doug Green is recognized as one of the country's leading lawyers in electric utility regulation. Much of his practice involves antitrust issues. In recent years, as the electric utility industry has consolidated, he has represented a number of major utilities in acquisitions that have undergone scrutiny by the Antitrust Division. Additionally, he has represented a leading US utility in its acquisition of a UK utility. He has also represented utility clients in several Antitrust Division civil investigations. Finally, he has defended utility clients in a number of treble-damage cases.

Reid Weingarten and Mark Hulkower: Messrs Weingarten and Hulkower are the lead partners in Steptoe's white-collar criminal defense practice group. In addition to representing corporations and senior executives in a wide variety of criminal investigations and prosecutions, they have represented companies and management in criminal antitrust cases involving cartel and price-fixing allegations.

Noteworthy

  • Who’s Who Legal for Competition Law 2008 (Ken Ewing)
  • Washington, DC Super Lawyers 2007 (Anthony Epstein: Antitrust Litigation; Ken Ewing: Antitrust Litigation; Robert Fleishman: Antitrust Litigation; David Roll: Antitrust Litigation;
  • Best Lawyers in America (Robert Jordan: Commercial Litigation and Corporate Law, 2008; Antitrust, 2006)
  • Expert Guides: Competition and Antitrust 2006 (David Roll)
  • Who's Who Legal: The International Who's Who of Business Lawyers for Competition 2006 (Ken Ewing)
  • Lawdragon 500 Leading Lawyers in America 2006 (Richard Roberts—a "triple threat in antitrust, litigation, and energy, he has shaped supersized electricity-industry restructurings")

Representative Matters

Recent Merger and Acquisition Highlights

  • A specialty chemical manufacture in the sale of its main lines of business to its chief rival
  • Major utilities in a wide range of mergers and acquisitions
  • One of the largest railroad mergers in recent history
  • Several acquisitions and joint ventures by one of the world's largest airline reservation systems
  • Several acquisitions by a leading air transportation company
  • Major telecommunications mergers and joint ventures
  • A soft drink bottler in its acquisition by a major soft drink manufacturer
  • The acquiring company in its acquisition of a food products company
  • The sale of various business units and the formation of a joint venture in the chemical industry
  • A major technology company in its sale of a defense business to a major defense contractor
  • A blood plasma products company in a sale to a major medical products and services company
  • A digital authentication company in its acquisition by a leading digital security company
  • A major chemical company in its acquisition of another leading chemical company's polyols and propylene glycol assets
  • An association of retailers opposed to a merger between the largest manufacturer and largest wholesaler in the industry
  • Major chemical companies in a wide range of acquisitions and joint ventures
  • A European state-owned holding company in its sale of a minority interest to a US airline
  • Many mid-sized companies in numerous acquisitions in such industries as automotive parts manufacturing and retail, defense, wholesale grocery, hospital supply, and insurance information services

International Antitrust

  • Defense of a leading airline in a multi-national price fixing investigation—before the US and EU authorities
  • A major travel reservations system in its defense of coordinated investigations by the European Commission and the US Department of Justice—first referral of a civil investigation by the United States to the European Commission
  • A leading defense contractor in opposing a merger before Canadian and EU agencies (as well as US agencies)
  • A leading US electric utility in its acquisition of a major UK utility
  • Defense of a US chemical company's joint venture and technology license with a European firm - European Commission investigation
  • A US chemical company in the sale of its polyether polyols business to a German firm and a propylene oxide joint venture with the same firm—European Commission investigation
  • A telecommunications company in connection with acquisitions and marketing ventures with significant European components
  • A major biotechnology-based pharmaceutical company in the potential acquisition of a European-based pharmaceutical company—EU and member state competition regimes
  • A major US electronics manufacturer in a French price-fixing investigation—working closely with local French competition law experts
  • A major US chemical company in its proposed acquisition of an European competitor-merger reviews in several European countries
  • Leading agricultural company in EU investigations relating to food additives

Complex Antitrust Litigation and Class Actions

  • Defense of a leading foreign airline in US treble-damages cases associated with ongoing multi-national criminal cartel investigations
  • Defending a major automobile insurer in multiple class actions directed at the use of non-original equipment repair parts and other claims handling practices
  • Defending a major workers' compensation insurer in state court antitrust class actions alleging price fixing and related offenses
  • Defending a major life insurer in a federal action attacking industry preparation of studies of investment performance
  • Defending a major property/casualty insurer in parens patriae actions and related private class actions alleging restrictions in environmental coverages
  • Defending a major electric utility sued by a large purchaser for alleged monopolization and tying
  • Defending a major purchaser of ammonium nitrate in suits brought by coal companies for price-fixing
  • Defending a major industrial chemical manufacturer sued on indirect purchaser claims of price fixing of chlorine and caustic soda
  • Defending a leading foreign heavy equipment manufacturer sued for treble damages in one of only a handful of predatory pricing cases ever brought under the 1916 Antidumping Act
  • Defending a major medical equipment manufacturer sued on monopolization and tying theories by independent service organizations in multiple jurisdictions
  • Defending a major electric utility sued by municipal competitors in a monopolization case
  • Defending one of the major market makers on the NASDAQ in the consolidated treble-damages actions on behalf of direct purchasers of NASDAQ securities

Government Civil Investigation and Litigation

  • Representing a major foreign insurer in price-fixing and market allocation investigations by state attorneys general and state insurance regulators
  • Representing a major electric utility in a DOJ civil investigation regarding possible monopolization arising from an alleged refusal to wheel power
  • Representing another major electric utility in a DOJ civil investigation demand relating to an alleged conspiracy regarding a state's electric vehicle program
  • Representing a major trade association in several investigations by the FTC and the DOJ relating to allegations of price fixing and conspiracies to exclude competitors
  • Defending an investigation into alleged practices relating to law school accreditation
  • Defending a healthcare company in a Florida Attorney General investigation into alleged division of territories
  • Defending homeowner's insurers in a Florida Attorney General investigation into an alleged conspiracy to fix hurricane insurance prices
  • Defending auto insurers in a California Attorney General investigation into alleged collusive activity by insurers in response to state rate restrictions
  • Defending a major Japanese electronics manufacturer in a 50-state investigation into resale price maintenance
  • Representing an Internet-based travel service in a DOJ investigation of contractual arrangements with airlines
  • Representing a leading securities dealer in the Justice Department's NASDAQ investigation
  • Representing a trade association in FTC investigations of pharmaceutical pricing, marketing, and patent practices 

Grand Juries & Criminal Prosecutions

  • Representing a leading foreign airline in a major grand jury investigation of price fixing in the air cargo industry
  • Represented several senior executives in major grand jury investigations of price fixing in the lycine, fructose, and citric acid industries.
  • Defended the world's largest aquaculture farm co-operative in a grand jury investigation of price fixing.
  • Defended two crude oil refining companies in grand jury investigations of price fixing
  • Defended a large, diversified forest products company in a grand jury investigation
  • Defended a manufacturer of commercial neon signs in a grand jury investigation
  • Defended a pharmaceutical manufacturer in a grand jury investigation of price fixing
  • Represented senior executives in the vitamin cartel case

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