We have substantial experience addressing each of the below-listed antitrust issues on behalf of plaintiffs, defendants, businesses, standard-setting organizations, amnesty applicants, and subjects and targets of criminal investigations. We have litigated most of these issues and advised our clients about all of them.
Liability under Section 1 of the Sherman Act: Horizontal price-fixing, horizontal market allocation, bid-rigging, horizontal group boycotts, coordinated refusals-to-deal, tying arrangements, exclusive dealing, resale price maintenance, standard-setting matters, “quick-look” offenses, offenses under the rule of reason, dealer restraints, reverse settlement payments in patent litigation, misuse of MFN clauses, and miscellaneous restraints of trade.
Liability under Section 2 of the Sherman Act: Monopolization, attempted monopolization, and conspiracy to monopolize, as well as various kinds of “anti-competitive conduct” alleged against supposed monopolists, such as misuse of essential facilities, unilateral refusals-to-deal, FRAND abuse, bundled discounts, product bundling, misuse of intellectual property rights, predatory pricing, monopoly leveraging, and other kinds of “predatory conduct.”
Liability under Section 3 of the Clayton Act: Probable market foreclosure accomplished by tying arrangements or exclusive dealing.
Liability under the Robinson-Patman Act: Unlawful price discrimination, as well as loyalty discounts, rebates, concealed price discrimination, and other pricing preferences.
Market Definition, Market Power in Section 1 Cases, and Monopoly Power in Section 2 Cases
Antitrust Standing and Antitrust Injury
Incipient Threats to Competition under Section 7 of the Clayton Act: Challenging or defending mergers and acquisitions that allegedly pose anticompetitive risks; related matters.
Resale Price Maintenance (Vertical Price-Fixing): The confused state of the law in the aftermath of the Leegin case; enforcing Colgate policies and minimum advertised pricing (MAP pricing).
Private Standard-Setting Matters
Misuse of Most-Favored Nation Clauses (MFN clauses)
Antitrust Immunity under State and Federal Law
Sham Litigation and the Noerr-Pennington Doctrine
The International Reach of American Antitrust Law
Antitrust Reporting Requirements under the Hart-Scott-Rodino Act
Restraints of Trade under California’s Cartwright Act: Forbids the same conduct as Section 1, but for some offenses a more expansive standard is applied; resale price maintenance apparently remains a per se violation.
Predatory Pricing and Price Discrimination under California’s Unfair Practices Act: Imposes a more expansive standard against predatory pricing (a particular kind of anticompetitive practice employed by monopolists and firms that practice primary-line price discrimination); specifically, California law allows firms to prevail on predatory pricing claims that cannot proceed under the restrictive federal standard adopted by the U.S. Supreme Court in the modern era; in particular, there is no obligation under California law to prove “recoupment” (i.e., no obligation to prove that the predatory seller, after acquiring its monopoly by charging low prices, can successfully raise its prices to supracompetitive rates after running its rivals out of the market).
Violations of California’s Unfair Competition Law: Authorizes injunctive relief for antitrust abuses under California’s more expansive, plaintiff-friendly standards, allowing firms to obtain protection that they possibly cannot obtain under federal law; also authorizes restitution of ill-gotten gains and can serve as a basis for class-action litigation.
Mr. Markham also has general knowledge of competition policy in the European Union and Canada and clerked for a leading law firm in Montréal, Québec while at law school (Ogilvy, Renault), working as a summer clerk in its competition group. We can readily collaborate with leading firms in foreign jurisdictions in order to help our clients to address international and global antitrust concerns.
Our Ability to Accept Large Cases
Several times we have been opposed by teams of highly capable attorneys fielded by leading global law firms. In any such matter, or whenever the need arises, we can quickly assemble our own team of first-rate professionals who have worked with us successfully on prior occasion, and we can also procure essential litigation services from reliable outside service-providers, so that we are never outmatched or overwhelmed even by the largest or most pro-active global firm. We think that our work in these matters has reflected favorably on us, and we have obtained successful results for our clients in exceedingly difficult, sprawling, and complex antitrust controversies. All the while, we are able to maintain our reasonable billing arrangements because of the manner in which our practice is structured and our lean fixed costs.
Our Articles on Antitrust Law
Mr. Markham and Mr. Bona have given lectures on antitrust law for other attorneys (MCLE classes) and written extensively about antitrust law. Mr. Markham provides occasional commentary in his blog about antitrust issues that make the news, and Mr. Bona does this same in his own blog. Below you will find links to three articles on antitrust law written by Mr. Markham that have become reference sources for other attorneys and the general public:
The Qualcomm Case Isn’t Even a Close Call: Qualcomm Blatantly Misused Its Standard-Essential Patents to Restrain Trade and Monopolize Markets. By William Markham
The Extraordinary Qualcomm Case. The defining antitrust issues of our time are at stake in the landmark case of Fed Trade Comm'n v. Qualcomm Inc., (N.D. Cal. 2017, Case No. 17-CV-00220-LH) ("Qualcomm"). Qualcomm specifically concerns standard-essential patents and...
The DOJ’s Investigation of the Auto Producers’ Draft Agreement with California: It Is Misguided and Likely an Abuse of Power. By William Markham
The United States Department of Justice has reportedly begun an antitrust investigation of four major automakers for possible unlawful collusion in violation of United States antitrust law. The cause of this investigation? The automakers tentatively agreed with the...
I respectfully and strongly disagree with the Supreme Court's recent decision in the Amex case, in which the Supreme Court ruled, by a narrow 5-4 majority, that the government plaintiffs had failed to establish a prima facie case against American Express Company...
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San Diego, CA 92101.
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