Antitrust & Commercial Competition

Our Antitrust & Commercial Competition Group at BFKN represents clients in a wide range of antitrust and competition matters arising under the federal Sherman, Clayton, and Robinson-Patman Acts, as well as state antitrust and unfair competition laws. Our experience also includes the protection of clients’ intellectual property in Lanham Act litigation and FRAND licensing matters. Clients who are facing significant antitrust or other competition law issues know they can turn to BFKN, as our knowledge of the industries in which they operate is well known. Clients also appreciate the effective and efficient manner in which our attorneys respond to their needs. Indeed, the firm’s attorneys have represented clients in some of the most significant antitrust litigation and enforcement matters of the last 50 years, including:

• The seminal Copperweld litigation which reached the U.S. Supreme Court.
• The Vitamin C price-fixing litigation which reached the U.S. Supreme Court.
• The high-fructose corn syrup (“HFCS”) and citric acid antitrust class action litigation that grew out of the sprawling Department of Justice investigation of U.S. agribusiness in the 1990s.
• The Apple E-Book Store investigations and litigation.
• The current no-poach litigation in the luxury fashion industry.

The firm’s attorneys have represented individuals and corporations in criminal antitrust investigations as well. 

BFKN provides antitrust and competition counseling and representation to many of the world’s largest companies and most recognizable brands, but our attorneys’ unusual depth and breadth of experience in certain industries—banking, automotive, luxury goods, and manufacturing, among others—makes us uniquely suited to handle competition issues as they arise in those industries. Our antitrust attorneys are able to draw not only on their own experience, but also that of other BFKN attorneys, to provide uniquely practical and considered advice.

Counseling

We advise clients on compliance with federal and state antitrust and competition laws regulating restraints on trade, monopolization, price discrimination, and intellectual property protection. With a focus on the industries that we represent regularly, we have substantial experience counseling:

• Auto manufacturers on the impact of the Sherman Act, Robinson-Patman Act, and analogous state laws on the structure of their relationships with other OEMs as well as their respective dealer networks, including, for example, distribution and supply agreements between competing manufacturers, distributor and retailer incentive programs, and promotional allowances.
• Industrial manufacturers on the impact of the Sherman Act, the Robinson-Patman Act, and analogous state laws on the structure of their distribution networks.
• Luxury goods manufacturers and retailers on the impact of the Sherman Act on their employment policies and procedures.
• Financial institutions on the regulatory review of mergers and acquisitions.

Litigation

BFKN attorneys have handled the spectrum of competition litigation, from large class action litigation alleging price-fixing, market division, and no-poach agreements in violation of the Sherman Act, to individual actions by distributors and dealers alleging price discrimination in violation of the Robinson-Patman Act and state competition laws. For example:

• Represent luxury goods manufacturers and retailers in federal class action litigation alleging a no-poach conspiracy.
• Represented high fructose corn syrup manufacturer in federal MDL In re HFCS Antitrust Litigation, a class action alleging price fixing in the HFCS industry, as well as in related indirect purchaser state court class actions.
• Represented a foreign governmental agency as amicus curiae asserting “act of state” doctrine on behalf of a foreign company defendant in a class action alleging price fixing in the Vitamin C market.
• Represented a citric acid manufacturer in state court class action alleging price fixing in the citric acid industry.
• Represented an automotive manufacturer against claims that a national dealer incentive program violated the Robinson-Patman Act’s prohibition of price discrimination.
• Represented numerous plaintiffs and defendants in litigation alleging violations of non-compete and confidentiality agreements, as well as state and federal laws protecting trade secrets.

Government Investigations

Our attorneys have represented corporations and individuals in price-fixing and bid-rigging investigations conducted by the Department of Justice (DOJ), including major investigations into allegations of price fixing in agricultural commodities and electronic publishing. For example:

• Represented a defense contractor in criminal bid rigging investigation, and successfully negotiated amnesty agreement with DOJ Antitrust Division.
• Represented an individual in DOJ Antitrust Division criminal price-fixing investigation resulting in a decision not to prosecute
• Represented an engineering company in grand jury bid rigging investigation resulting in no indictment.
• Represented a former “big six” book publisher in DOJ Antitrust Division and State Attorneys’ General investigations regarding the launch of the Apple iPad and the Apple e-book store.
• Represented a luxury furniture manufacturer in multi-State Attorneys’ General investigation into alleged price-fixing arrangements.

Practice Contacts