Articles Posted in Law firms and legal practice

Antitrust Superhero

Author: Jarod Bona

Some lawyers focus on litigation. Other lawyers spend their time on transactions or mergers & acquisitions. Many lawyers offer some sort of legal counseling. And another group—often in Washington, DC or Brussels—spend their time close to the government, usually either administrative agencies or the legislature.

But your friendly antitrust attorneys—the superheroes of lawyers—do all of this. That is part of what makes practicing antitrust so fun. We are here to solve competition problems; whether they arise from transactions, disputes, or the government, we are here to help. Or perhaps you just want some basic advice. We do that too—all the time. We can even help train your employees on antitrust law as part of compliance programs.

Perhaps you are a new attorney, or a law student, and you are considering what area to practice? Try antitrust and competition law. Not only is this arena challenging and in flux—which adds to the excitement—but you also don’t pigeonhole yourself into a particular type of practice. You get to do it all—your job is to understand the essence of markets and competition and to help clients solve competition problems.

For those of you that aren’t antitrust attorneys, I thought it might be useful if I explained what it is that we do.

Antitrust and Business Litigation

Although much of our litigation is, in fact, antitrust litigation, much of it is not. In the business v. business litigation especially, even in cases that involve an antitrust claim, there are typically several other types of claims that are not antitrust. As an example, we explain here how we see a lot of Lanham Act False Advertising claims in our antitrust and competition practice.

Businesses compete in the marketplace, but they also compete in the courtroom, for better or worse. And when they do, their big weapon is often a federal antitrust claim (with accompanying treble damages and attorneys’ fees), but they may also be armed with other claims, including trade secret statutes, Lanham Act (both false advertising and trademark), intellectual propertytortuous interference (particularly popular in business disputes), unfair competition, unfair and deceptive trade practices, and others.

In many instances, in fact, we will receive a call from a client that thinks they may have an antitrust claim. Perhaps they read this blog post. Sometimes they do, indeed, have a potential antitrust claim. But in other instances, an antitrust claim probably won’t work, but another claim might fit, perhaps a Lanham Act claim for false advertising, or tortuous interference with contract, or some sort of state unfair trade practice claim.

Antitrust lawyers study markets and competition and are the warriors of courtroom competition between competitors. If you have a legal dispute with a competitor, you should call your friendly antitrust attorney.

Antitrust litigation itself is great fun. The cases are usually significant, document heavy, with difficult legal questions and an emphasis on economic testimony. Some of them even involve class actions or multi-district litigation.

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Author: Jarod Bona

This website is called The Antitrust Attorney Blog, not the Appellate Attorney Blog. But I have combined an appellate practice with my antitrust practice my entire legal career and we do a lot of appellate work at Bona Law. So sometimes we address appellate, writing, and briefing issues here.

I previously wrote about why you should hire an appellate lawyer.

And mused about what is great legal writing.

Here is an article about the details of how to actually prepare for and write a significant appellate or antitrust brief.

In this article, I discuss the three foundations for every argument on appeal. These can also apply to trial-level arguments, but at the appellate level you can usually build a more complete argument, so I will use the appellate brief as the model.

Of course, what I like about antitrust is that the cases tend to be more complex, which usually invites deeper arguments, even at the trial level (similar to an appellate brief).

My arguments incorporate these three components.

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Author: Luis Blanquez

Antitrust and competition law is a global issue. Markets that could be national are often global instead (because if they aren’t naturally local, there usually isn’t reason to stop at a country’s borders).

Bona Law embraces this international reality. That is part of what attracted me to the firm upon my arrival in the United States after 15 years of practicing antitrust and competition law in Europe. We can help clients all over the world with US and EU antitrust issues.

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Author: Jarod Bona

You might have a Lanham Act claim if your competitor is making false statements to promote its products or services in a way that deceives customers and injures you because you lost business, for example, as a result.

Although many people think of the Lanham Act as a trademark statute—and it is—it also allows competitors to sue each other for false advertising.

So the Lanham Act is on the battlefield for competition as competitors often use lawsuits as part of their arsenal to gain whatever advantage they can.

The Lanham Act is particularly interesting because it allows competitor standing when the true harm is done to consumers, so long as the plaintiff suffered lost profits or something similar because of the false statements.

Indeed, Congress designed the competitor enforcement mechanism because competitors have both the knowledge and motivation to enforce the Lanham Act. The Supreme Court explained this enforcement rationale in its POM Wonderful LLC v. Coca-Cola case, which you can read about here:

Competitors who manufacture or distribute products have detailed knowledge regarding how consumers rely upon certain sales and marketing strategies. Their awareness of unfair competition practices may be far more immediate and accurate than that of agency rulemakers and regulators.”

Importantly, however, the Supreme Court clarified in its Lexmark decision that the plaintiff need not necessarily be a competitor, so long as they suffered “an injury to a commercial interest in sales or business reputation proximately caused by the defendant’s misrepresentations.” This is an important opening and you can read more about our discussion of the Supreme Court’s Lexmark standing decision here.

The Lanham Act is, however, primarily a statute that competitors use to sue each other. You also see this in antitrust law—of course—and intellectual property law (including trade secret and trademark cases). And, under state law, competitors sue for tortious interference, of some sort, along with state statutes that prohibit false advertising and antitrust. And there are other causes of action, state and federal, that come up in specific circumstances.

For better or worse, business competition often takes a detour to the courthouse and companies use litigation to their advantage. Filing a lawsuit for the sake of filing one, without a meritorious claim, could subject you to actions for malicious prosecution, abuse of process, and even antitrust liability in certain circumstances. But companies with prima facie claims against their competitors often relish the opportunity to carry the market fight to the legal forum. We’ve seen this from both sides, many times, over the years.

Sometimes antitrust lawyers call themselves antitrust and competition lawyers. The reason for that is that in the United States our laws that govern competition are called “Antitrust” laws (because of the unique history of the federal statutes that went after the “Trusts” back in the day). In Europe and much of the rest of the world, by contrast, these law are called, straightforwardly, “Competition” laws. And the lawyers that practice in this area are called Competition Lawyers.

But there is a second great reason for US antitrust lawyers to more accurately describe themselves as antitrust and competition lawyers. That is because when you represent clients that compete in a marketplace, you experience their hard-core focus on competition and, necessarily, their competitors.

You help them manage the rules of competition, with your own tools. Many of those involve antitrust knowledge and experience. But—to really help your clients—you also need to understand and have experience with the other causes of action that come up among and between competitors. And that includes, of course, the Lanham Act.

So—while we can accurately call ourselves antitrust lawyers, we are really antitrust and competition lawyers because we advise clients on the rules of competition generally, which are much broader than simply the antitrust laws. We are soldiers on the legal battlefield of competition. Antitrust laws are great weapons, but they aren’t the only ones.

As sort of a related aside, I’ve been thinking a lot lately about what I have learned advising clients in antitrust and competition law. Over time, you experience competition in all forms. You see different ways that competitors try to knock each other out of the market, or otherwise take market share. Sometimes this is about competing better, but it is often about competing differently—that is, adjusting your service and product to not only differentiate yourself, but to create a new market altogether.

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We are ecstatic that Steve Levitsky agreed to join us in New York. It isn’t every day that an antitrust attorney of Steve’s caliber becomes available, let alone fits so perfectly into a law firm’s approach, culture, and plans. But that is the happy situation in which we find ourselves.

You can read our press release about the move here. And you can read Steve Levitsky’s impressive biography here.

As you can tell, I am very excited about this next chapter in Bona Law’s history. As you can see, we now have two offices: La Jolla, California and New York, New York.

Bona Law is an antitrust boutique firm. Our client base has been worldwide for quite some time and we have had cases and other matters all over the country. So the move to add a New York office doesn’t change our focus: We have always been a national antitrust boutique firm.

But I think opening our New York office signals to the marketplace more directly that we are a national law firm that competes with biglaw for antitrust. And adding Steve to our team—with his decades of big firm antitrust experience and worldwide client base—confirms our place.

Steve Levitsky’s antitrust experience includes the big three of litigation, antitrust counseling, and antitrust merger work. But what is even more exciting for us is that Steve is particularly known for his antitrust merger expertise, which is an area in which I have much less experience.

Over the last few years, I have heard repeatedly that many companies that have an HSR filing or other antitrust merger issues are frustrated that they don’t options other than big law firms. Well, now they do: Steve has managed the antitrust side of countless complex merger transactions, domestic and global—many of them worth over $10 billion.

So if you are a corporate attorney or business with antitrust merger or acquisition issues, you should contact Steve.

Steve has such an impressive background that he would, frankly, fit in at any law firm. He would substantially raise the average quality of the attorneys no matter where he would have gone. Our traditional press release and website article goes into his background, so I am not going to repeat it here.

I enjoy writing articles for The Antitrust Attorney Blog because it allows greater flexibility in what I tell you. I try to offer some of the informal truths relating to antitrust and law practice that, although vitally important, are not usually discussed so straightforwardly.

So, obviously, adding Steve to our team is a huge deal because he is a great lawyer. But my excitement about this move goes well beyond that obvious point.

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Bona Law filed an antitrust lawsuit on behalf of our client in the Northern District of Georgia alleging antitrust violations in the cement and ready mix concrete markets. More on that later.

But first I am going to tell you a fictional story about your nine-year-old son and his first entrepreneurial endeavor. If you don’t want to hear about your son, you can skip to the next section, about Bona Law’s new case.

The Lemonade Stand

You don’t have a nine-year-old son? Well … you do for this story. Congratulations, it’s a boy!

As you know, your son’s name is Johnny. You call him Little Johnny, but he is growing so fast, you are not sure how much longer the “Little” will last. But you treasure these times because they grow up so quickly.

And speaking of growing up quickly, Johnny sure is maturing. You tried to get him to clean-up around the house for an allowance, but he turned you down. He said he doesn’t want to be an employee and taking a job with you will just lead him into the rat race. Why would he want to do that?

Instead, Johnny says, he wants to start his own business. Ownership is where the money is, he says. Johnny wants to build cash flow, so he can just skip the rat race. Smart kid.

Okay, you say, “why don’t you start a lemonade stand?”

Johnny is excited. This is his first business—his first taste of Capitalism!

“Yes, I’ll build the best lemonade stand in the neighborhood, will serve the best tasting lemonade, and will be very careful with my costs, so I can charge a lower price and sell the most lemonade.”

Apparently Johnny has been paying attention to the business podcasts you have been listening to in the car.

As you know, you just moved to a wonderful neighborhood in the San Diego area. After years on the east coast, dealing with the harsh weather and sometimes harsh people, you are excited that you are now in paradise. The weather is incredible all year here and the constant sunshine puts you in a great mood.

Of course, it is tough to move to a new area, especially for kids. Johnny is excited, but a little nervous. He doesn’t know many kids in the neighborhood yet, and doesn’t start school until the fall—it is still July.

You and he have both noticed, however, that the neighborhood has a few lemonade stands—and many thirsty neighbors—so this might be a good way for him to make some friends and get to know the neighborhood.

You help Johnny build a stand, but to his credit he does most of the work—his enthusiasm for the venture has produced a work ethic in him you’ve never seen. You also admire his efforts to plan out his purchase of supplies, opting for Costco so he can buy what he needs in bulk at a low cost per glass (as he explained to you).

Johnny now has everything ready for his business: a stand with an attractive sign, cups, a money box, raw materials to make lemonade, a cooler, a couple chairs for him and his friend (or you, when you want to stop by), and, most importantly, the joy of ownership from starting his own business. You’ve never seen him so happy.

You drive around the neighborhood with him and discover that other kids seem to be selling lemonade at $7 per glass, which seems a little high, but it is a wealthy neighborhood, so perhaps that is the market price? It has been a warm, surprisingly humid summer in San Diego. You discuss with Johnny how that weather pattern increases demand. Of course, it did seem odd to you that everyone was selling lemonade at exactly $7 per glass, but you dismiss it.

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You may not realize this, but a lot of people don’t like lawyers. We even have our own genre of comedy that predates Shakespeare: lawyer jokes. Here is a common example: What do you call 1000 lawyers at the bottom of the ocean? A good start!

When you heard that joke for the first time, you probably laughed and laughed, shook your head and said, “funny because it’s true.”

So why do people dislike lawyers? To save you time, I’ll focus on one reason and leave the rest for others: Because lawyers spoil the fun by saying “no.”

This reason for not liking lawyers, of course, comes from the business context where companies consult either in-house lawyers or outside counsel about how or whether to proceed on a project or opportunity.

It is the lawyer’s job and duty to risk ruining the party. The business and sales people look at the opportunity and see upside: revenues, more market share, perhaps an important merger or acquisition.

It is the lawyer that must look at the opportunity to see the downside risks: the lawsuits, the disputes, the government reactions or investigations, the response from competitors. Then, oftentimes, the lawyer says “no.” The music stops and people go back to their offices, sometimes frustrated and angry, perhaps thinking that the lawyer should be on the bottom of the ocean. The lawyer is the bad guy, even if he or she is just doing his or her job.

But this isn’t an article defending lawyers.

To be honest, most lawyers aren’t great, or sometimes even good. The same is true of most people in any profession. Only in Garrison Keillor’s Lake Wobegon, Minnesota is everyone above average (of course, he was talking about the children, but you get the point). And many criticisms about lawyers apply to many of members of this profession, including the fact that they just ruin the party by saying “no” all the time.

I think that the lawyer that just says “no” is a lazy lawyer that offers very little value to his or her client. Sometimes the lawyer must say “no,” but in most instances, there should be more and I don’t just mean justifications for the denial.

Of course, a client might come up to a lawyer and say the following: “As you know, we compete in a market with four main players. It seems silly that we spend so much time trying to undercut each other on price and so many resources trying to come out with new features to our product. Our adversaries may lack social grace, they may smell bad, and they certainly aren’t good looking, but they aren’t bad people. We could all make more money if we could just get together, have a meeting, set the price we are all going to charge, maybe divide up the customer base, probably by geography, and vote on features to add to our products.”

An antitrust attorney that hears this from a client, must say “NO,” in all caps, like they are yelling. Of course, after that, they better work on education through antitrust compliance counseling and training. Time to put together an antitrust compliance policy.

But in most instances—even where the client’s idea create risk—a simple “no” is not the right approach, at least from a good antitrust attorney.

The scenario I described above—involving price fixing and market allocation (per se antitrust violations)—is a rare example of a situation where the antitrust laws are almost completely clear.

In most instances, either the law or the application of law is not straightforward enough to entirely preclude the client’s objective. For example, the question of what is exclusionary conduct under Section 2 of the Sherman Act (Monopolization) is not an easy one to answer. There is still great debate among the courts, academics, and economists. Similar issues can arise if you are trying to determine if an exclusive dealing agreement violates the antitrust laws: Sometimes the answer isn’t clear.

Advising Business Clients on Antitrust Risks

I can’t speak for all antitrust attorneys, but here is how I handle counseling clients on antitrust risks:

First, I understand that the perspective of a business is different than the perspective of the typical lawyer.

The attorney, especially the litigator, has grown up (professionally) in a world where they win or lose a motion or case and where something is or isn’t illegal under the law. There are, of course, grey areas, but a young attorney that receives a research project, for example, is tasked with finding the “answer.” And courts have to give decisions on “the law” in such a way that suggests there is an answer, even when the reality is that it could have gone either way. But opinions rarely say that—when they do, it is a credit to the judge.

Businesses, however, make calculated judgments based upon risk, reward, and resources. Opening another factory has obvious risks and rewards and takes resources. The business executive tries to evaluate the risks, judge the potential upside, and compare both of those to the resources necessary to open the factory.

If you tell the business to not open the factory because there are “risks,” you aren’t helping it. The business executive will just stare at you like you are some sort of fool. Of course there are risks; the skill in running a business is to evaluate those risks and incorporate them into decisionmaking.

I understand this perspective even more clearly now, having run Bona Law for several years.

Let’s apply this point to antitrust counseling: If a client comes to me with an opportunity, a project, or even a problem, it does the business little good for me to just say “no, there are risks.” That’s the lazy approach, in my view.

My value as the antitrust attorney in that situation is to help the client fully understand the risk. That is, I try to help the client appreciate the likelihood of the risk coming to fruition and the consequences of the risk, if it hits. And, in fact, the counseling is usually more complicated because there are often multiple risks, each with their own structure of probability and harm.

I do this because this is how businesses make decisions: They incorporate risk into the information that they have and make the best call they can.

Second, I work with the client to come up with options with similar rewards or upsides, but less antitrust risk—or some more preferable sliding scale of the risks and rewards.

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I have written many briefs over the years, since graduating from Harvard Law School in 2001. I have also read many briefs, both practicing law and clerking for Judge James B. Loken on the United States Court of Appeals for the Eighth Circuit (in Minneapolis).

The quality and style of the legal briefs I have seen vary dramatically. And—not surprisingly—the approaches to writing them probably varied even more.

Judge Loken stressed to us law clerks that his job as an appellate judge is that of a professional writer. He communicates his opinions in writing and a clear articulation of that writing is necessary so attorneys, parties, and judges understand the decision that was made and its reasoning. A law clerk might submit a draft opinion that is 10-pages long and receive a revision that is only 3-pages long, but miraculously says everything that needs to be said in a clear, straightforward manner.

From that experience, I learned that every additional word has a cost and that writing sparely is more valuable than writing densely. I’ve also learned that writing less is harder than writing more. (Yes, I know this is an excessively long blog post)

Following my clerkship, I began my legal career as an appellate attorney with Gibson, Dunn & Crutcher in Washington, DC. I was fortunate to have my writing edited—heavily at times—by some incredible appellate attorneys and great writers. This period also informed my approach to brief-writing, as that was what that team did best.

Over the years, I became an antitrust attorney as much, if not more, than an appellate attorney. But both antitrust law and appellate litigation have been my primary practice areas from the beginning and remain so today.

Both antitrust and appellate require attorneys to prepare significant briefing on often complicated and unresolved issues. That is, in fact, probably why I gravitated to both of them.

This is an antitrust blog, but sometimes I write about writing and appeals.

  1. Three Reasons to Hire an Appellate Attorney.
  2. What is Great Legal Writing?
  3. Three Components of Every Effective Appellate Argument.
  4. Why You Should Consider Filing an Amicus Brief in an Appellate Case.

Today I am going to explain how I create a significant antitrust or appellate brief, from scratch. Of course, I rarely do that anymore because it isn’t efficient at my billing rate for clients to pay for me to prepare the papers from the beginning. Fortunately, our team is great at writing and puts together outstanding initial drafts.

At Bona Law, we strongly emphasize writing. As you may have seen, we are interested in adding team members, from junior to senior attorney levels. Strong writing skills are essential.

Everyone has a different approach. My way certainly isn’t the only way and it probably isn’t the best way. But it is one way and is my result of many years of brief-writing evolution.

For purposes of this example, let’s assume that we are preparing an Appellee brief in a federal appeal of an antitrust motion to dismiss in our favor (as defendants). On appeal in federal court, the losing party that appeals is the Appellant, and the responding party that won at the trial level is the Appellee.

Here is the procedural posture (and this is fictional): Plaintiffs filed an antitrust complaint against our client alleging an illegal exclusive dealing arrangement with some of our client’s retailers. We filed a motion to dismiss—perhaps pointing out that the agreements were of a short duration and amounted to no more than competing for the contract (a common argument). The federal district court judge, after allowing plaintiffs a couple opportunities to re-plead following dismissals without prejudice, finally dismissed the case with prejudice. Plaintiffs filed their Notice of Appeal and eventually their Appellant Brief.

Remember, I made that up, so don’t go looking for a case like that.

If I were the attorney assigned to write the initial draft Appellee brief for the appeal, here is what I would do:

The Reading Phase

The first step is that I would read the motion-to-dismiss briefing at the trial court level. If I was already involved in the case, I would, of course, be quite familiar with the briefing, but I’d still read it again.

I would print out a clean version on actual paper, take out a pen (black or blue) and a highlighter (yellow) and read each brief carefully. I would do my very best to look at the arguments from a fresh perspective and would think about each of them from the viewpoint of an appellate review, which in this case would be de novo (so it wouldn’t be different than the trial court’s standard of review, at least technically).

It is easy for your mind to lock into a certain perspective, which is one reason why it is sometimes good to bring in fresh attorneys on appeal.

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At Bona Law, nobody owns any ideas. If I come up with an argument for a brief, it isn’t the Jarod-Bona idea. If a client or a paralegal or a junior attorney or my six-year-old son tells me that the strategy that I have set on a complex antitrust case has a flaw, he or she is not criticizing my idea or strategy.

When someone owns an idea they have a stake in defending it, even if new or different ideas or new information makes the old idea not worth supporting. If you want to optimize strategy, arguments, or anything else when you represent a client, you can’t cling to ideas or theories that no longer represent the best thinking.

That is why at Bona Law, I strongly encourage and remind everyone to criticize current ideas and to present new ones. Each person has a unique life experience, perspective, and focus, so anyone on the team can improve any aspect of a case, from the grammar, formatting, or punctuation of a sentence, to the overall strategy of a series of complex antitrust actions. Each person is welcome to support or criticize any idea because none of us owns any of them.

That approach is also important because we all have blind spots such that someone else’s fresh perspective will see a large smudge that you might miss on a paper that you have been staring at all day. That is part of why I recommend that you hire a separate appellate attorney.

But changing your mind isn’t just about a fresh perspective to something you may have missed, though that is significant. Sometimes new information should cause you to rethink your initial idea, even if your convictions were firm. Even better, with time you should develop greater knowledge, wisdom, and insight. You should also be exposed to the perspectives of more people, whether through actual interaction, literature, podcasts, biographies, and everything else.

Anyone that clings to a past idea when new information and their own development makes that idea foolish is, in fact, a fool.

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jarod_bonaOne year ago, I wrote my first blog post for The Antitrust Attorney Blog. Time flies. A lot has changed since then. When I started this blog, I was with DLA Piper. Now I am with a firm called Bona Law PC. DLA Piper is much bigger, of course. But Bona Law is a much more pleasant place to work. And it has a better name.

So, you might ask whether I have any observations about a year of blogging? Or whether I have learned anything during this time? As a Minnesotan might say, you betcha.

  • I like blogging. I’ve always enjoyed writing, as you can probably tell from my publications. But what is great about having your own blog is that you can write about whatever you’d like. I can say what I want when I want. I can write long articles or short articles. It is entirely up to me, not some list of editorial standards. My preferred writing style is not formal (or stuffy, as I like to describe formal writing). Luckily, the editorial board at The Antitrust Attorney Blog doesn’t care. One other observation is that I have written less for other publications. That wasn’t purposeful, but when I get an idea, I typically write it here rather than for someone else. I will probably continue to write law-review type articles for other publications, but most of my shorter stuff will end up here.