Competition & Antitrust Law: Ensuring Compliance & Avoiding Disputes

DENTONS is a global law firm committed to providing its clients with the competitive edge in an increasingly complex and interconnected marketplace. We spoke to Alan H Silberman, Chair-Emeritus of DENTONS antitrust/competition, who lent us his insight and experience as we sought to better understand the ever-evolving landscape of competition law.

Antitrust/competition issues can often be avoided or minimized by taking early, thoughtful actions. Issues arise from employees writing about market definition, power or dominance, without real knowledge and before counsel are involved. Such “off-hand” assessments are usually inexact or wholly inaccurate and can be antitrust damaging.

In the sale and distribution of products, efforts to restrict either pricing or marketing practices may be prohibited or permissible, depending on the jurisdiction, the underlying facts, and the manner in which policies are structured, communicated and enforced. Regulators and counsel in private practice actively bring antitrust claims knowing that expense and ambiguity will force resolutions regardless of the true merits (or absence of merit) in a claim.

Risk management requires early and regular interaction with antitrust specialists who understand the borders of prohibited conduct and wholly-unremarkable activity, but who also have in-depth experience to aid clients to pursue strategies that minimize the ambiguities or extremes leading to disputes.

DENTONS antitrust/competition practice integrates counselling, compliance training, competition authority representation and litigation as well as transactional representation and counselling. We provide strategic advice and guidance based on in-depth understanding of client operations and business objectives, going beyond rote application of legal principles and precedents and leading to “can do” solutions.

For example, since January 2014, we have been involved in US antitrust representation involving over 50 merger transactions, including many with multi-jurisdictional implications. We have obtained clearance of mergers where, based on an initial assessment of market share statistics, clients erroneously believed that numbers alone established barriers to entry that would lead to extended agency scrutiny.

In product marketing and distribution, we have developed and implemented policies and communication tools that emphasize benefits in managing retail price decisions, without crossing the line into agreements that are magnets for inquiry and challenge. Because a single team can both counsel and litigate, our counselling advice has been confirmed in the courtroom and in competition authority offices; and we use our experience in the courtroom to inform our counselling and compliance efforts.