Antitrust laws exist to protect consumers and other businesses from unfair restraints on competition. Antitrust investigations, criminal charges, and civil claims present enormous legal and financial threat to an accused company and the individuals involved.
At Delahunty & Edelman LLP, our antitrust defense attorneys represent clients in high-stakes criminal and civil antitrust proceedings. Allegations that may give rise to an antitrust investigation or litigation include: bid rigging, price fixing, price discrimination, market manipulation, monopolization, attempted monopolization, refusals to deal, resale price maintenance, output restraints, boycotts, territorial restraints, and unfair trade claims. Our attorneys are experienced in defending clients in antitrust cases and investigations, including class action suits and multidistrict litigation.
Furthermore, as former federal prosecutors, we are skilled and experienced at handling related allegations that may accompany antitrust investigations or litigation such as tax fraud, bribery, securities fraud, money laundering, and export control violations.
Federal antitrust laws are set forth in the Sherman Antitrust Act, Clayton Act, and Federal Trade Commission Act. The Sherman Act is a statute that criminalizes antitrust activities, including monopolies affecting interstate commerce. The Clayton Act provides an antitrust remedy for private parties harmed by a company’s unfair restraint on competition and enables them to sue for money damages.
The Department of Justice (DOJ) conducts criminal investigations into allegations of market allocation, price fixing, and bid rigging that violate federal antitrust and competition laws. Charges and convictions that result from these investigations can end or bankrupt a business and lead to prison time for individuals found guilty of antitrust crimes.
Under California law, the Cartwright Act prohibits antitrust activities and California’s Business and Professions Code governs the enforceability of non-competition clauses in contracts.
The Cartwright Act is a state law that prohibits anti-competitive activities like price-fixing, bid rigging, and other restrictions on competition. The Cartwright Act is very similar to the Clayton Antitrust Act and Sherman Antitrust Act, but makes it possible for businesses and individuals to face penalties under state law.
It is important to understand the specific actions a business may take or clauses it may include in contracts that could result in violations of antitrust and/unfair competition laws.
Bid-rigging – “Bid rigging” refers to collusion between two or more parties to determine who will win or lose a bid. It involves manipulating the process in some way by agreeing to submit low bids, submit a bid of an agreement upon amount, place a cap on bids, or agree to not submit a bid at all. These actions are anti-competitive in nature and violate state and federal antitrust laws. Antitrust regulators aggressively investigate and pursue charges related to bid rigging, and have a history of doing industry-wide sweeps to eradicate the practice by charging numerous individuals, including those who participated infrequently or were involved with relatively small bids.
Non-compete clauses – California law strongly disfavors “non-compete” clauses in contracts and rarely enforces them. Non-compete clauses generally prohibit a person — often an employee, business partner, or business associate — from engaging in business that may compete with the business. California law does not allow or enforce non-compete clauses aside from very limited circumstances when the clause restricts the activities of a business owner who is selling the business.
No poaching clauses – No poach agreements entered into by competitors in which the parties agree not to hire or recruit the other’s employees are violations of federal antitrust laws. The Department of Justice has stated that investigating and prosecuting people who engage in these illegal agreements is a priority.
Price fixing – Price fixing refers to an agreement between two or more competitors in an industry to lower, maintain, raise, or otherwise set by agreement the prices of goods or services. It does not take place when a business matches the prices of a competitor, rather there must be an agreement between the competitors themselves.
Violations of the Sherman Act carry penalties of up to $100 million in fines for a corporation and $1 million for an individual. Maximum fines can exceed these amounts and reach as high as twice the gain or loss in some situations. Individuals convicted also face up to 10 years of imprisonment.
If found civilly liable for antitrust violations, companies can face penalties of up to three times the amount of the monetary harm caused.
If you or your company are involved in a DOJ antitrust investigation or a civil antitrust lawsuit, it is crucial that you seek counsel from a highly skilled attorney experienced in such cases.
Our team endeavors to resolve our clients’ matters in the most efficient and cost-effective manner possible.