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).
Dealer Restraints
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.
Patent misuse, patent fraud, collusive settlements of patent litigation, sham enforcement of intellectual property rights, false advertising, trademark offenses, and related matters.
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.