U.S. Antitrust Risk Analysis in a Nutshell

Analyzing the U.S. antitrust implications of a merger, joint venture, or new pricing model or distribution scheme can be enormously complicated and time consuming. But in most instances, a few simple principles will give you a good sense of whether an activity is likely to entail significant antitrust risk. 

1.  The purpose of the U.S. antitrust laws is to prevent the creation or exercise of market power to the detriment of customers.

2.  Some conduct is so facially anticompetitive that it is unlawful regardless of its actual effect in the marketplace.

3.  Other conduct violates the antitrust laws only when it is likely to harm customers.

4.   As a general rule, the U.S. antitrust laws are more skeptical about arrangements where two or more competitors act collectively  than about distribution or other vertical arrangements or about decisions made unilaterally by a firm.

5.  The most important evidence of competitive effect is likely to come from the company's documents, customers, and competitors.

We briefly explore each of these principles after the jump.  Of course, given the technicalities and idiosyncrasies of U.S. antitrust law, nothing truly substitutes for a full analysis, but these principles will go a long way to informing your intuitions about antitrust risk. Read more.

Dale Collins
+1.212.848.4127
dale.collins@shearman.com