Antitrust & Trade Regulation

Antitrust and trade regulation law is complex. Often whether a particular practice will be declared unlawful depends on its purpose and its impact on competition. It is critical to understand not only the client’s business and objectives but the market in which the business operates. We represent clients in government investigations, enforcement proceedings and private civil litigation.

Antitrust Counseling & Compliance

Our attorneys provide guidance concerning mergers, joint ventures, collaborations, distribution and licensing agreements, and compliance investigations. We also assist clients in designing and implementing education and compliance programs.

Antitrust Investigations

We assist clients in responding to antitrust investigators by the Department of Justice and the Federal Trade Commission and state regulatory agencies.

Attorneys in the group have experience providing guidance to clients in responding to federal grand jury subpoenas and to federal or state civil investigative demands. We can mobilize resources to review and produce documents and conduct witness interviews to comply with the complex demands of federal or state investigations and with regard to any further action that may be taken by the enforcement agencies.

Antitrust Litigation

Our attorneys have represented clients in lawsuits in federal courts in Minnesota and other states against claims under the Sherman, Clayton, Robinson-Patman, and Federal Trade Commission Acts as well as state antitrust statutes. We have successfully asserted or defended a wide variety of product distribution and marketing claims, including price-fixing, bid-rigging, market allocation, group boycotts, refusals to deal, tying arrangements, exclusive dealing and other vertical restraints, price discrimination, resale price maintenance, joint purchasing/buying cooperatives, and covenants not to compete. Our experience includes both class actions and multidistrict litigation.

Consumer Protection

Consumer protection has become a fashionable element of antitrust and trade regulation law as government has stepped in and established a series of laws impacting such diverse contemporary consumer marketing issues as privacy and data protection, product labeling, safety, recalls and warranties.

Increasingly, we are asked to evaluate client compliance with privacy and data protection practices. We not only evaluate clients’ existing practices, but we also offer advice on how to structure marketing practices to meet federal and state marketing law requirements, including concerns with the Children’s Online Privacy Protection Act, CAN-SPAM Act, and telemarketing restrictions, state privacy, and data breach notification laws.

We advise clients with respect to product recall determinations and related health and safety risk analysis, including issues arising under the Consumer Products Safety Act and the Consumer Products Safety Improvements Act of 2008. We also have served as defense counsel and national coordinating counsel in multi-state liability cases.

Product Development & Intellectual Property

New product development normally is a joint effort between technical and marketing business professionals. Creation of a new product may involve entirely new inventions or simply new versions of existing products. If the product is truly innovative, it may be patentable, or it may involve trade secrets that need to be protected. A new brand-name may need to be developed, or it may be sold under an existing trademark. In any event, packaging will have to be designed and certain labeling may be required. Our experience with the full range of challenges presented by new products frequently benefits clients.

All firms that rely on intellectual property rights face increasing challenges. Standard setting and patent pool issues have become part and parcel of licensing formation, disputes and IP litigation. Probably no other area of antitrust law involves so many high-profile government and litigation disputes. The law is continually evolving. Our attorneys have substantial experience representing clients in matters relating to antitrust risks arising from actual or potential misuse of intellectual property rights, how standards are agreed upon, and how patent pools are formed to license the patents necessary to practice applicable standards.

Unfair Competition in Advertising & Selling

Advertising and sales campaigns raise a host of trade regulation issues. Promotional programs run in cooperation with dealers must be administered fairly. Advertising and sales presentations must be substantiated and not deceptive or unfair. Consumer promotions like sweepstakes and contests must comply with both federal and state laws.

We have prosecuted and defended claims of false advertising, unfair competition, product disparagement and grey marketing under federal and state law. Our attorneys understand both the technical and practical application of the laws regulating advertising allowances and other merchandising payments and services.

Structuring Distribution Arrangements

Sometimes one of the most fundamental business challenges is actually defining the structure of the distribution system, particularly when the supplier wishes to exert some degree of control over the manner in which dealers, distributors and others sell the products. The contractual arrangement between the parties is the best way to spell out the “rules of the road” between the supplier and its resellers. Our attorneys know what you can and cannot include in these contracts and work with clients to make sure that they are provided with every advantage in structuring their distribution relationships.

Mergers & Acquisitions

Merger control is a unique product of history, political debate and intense bargaining. The Clayton Act, including Section 7 addressing merger enforcement, was originally enacted in 1914. In 1950, Section 7 was amended to broaden its coverage. Since then, but particularly during the last thirty years, merger enforcement has been a central mission of U.S. antitrust enforcers. During this period, merger analysis has evolved from the relatively rigid approach of the 1960s to today’s more flexible standard.

Attorneys in the Antitrust & Trade Regulation Group assist clients with issues related to mergers and acquisitions, including Hart-Scott-Rodino pre-merger and international notifications, negotiations with federal and state regulators (both for clients seeking merger approval and for clients opposing a merger), administrative filings, and corporate restructuring.

Experience in a Variety of Industries

Our experience includes agriculture, automotive, beverages, computer hardware and software, consumer goods, dairy and food, energy, health care, industrial adhesives and chemicals, internet, manufacturing, pesticides, retail and technology.

Representative Cases

• Vitamins Antitrust Litigation: We represented a defendant in ongoing civil antitrust proceedings (both state and federal court) alleging worldwide vitamin price-fixing.
• Milk Products Antitrust Litigation: We represented a defendant in civil and criminal antitrust proceedings in connection with alleged price-fixing of milk products. This included defense of both direct and indirect purchaser class action claims, a parens patriae claim by the Minnesota Attorney General and a grand jury investigation by the U.S. Department of Justice.
• Brand Name Pharmaceuticals Antitrust Litigation: We represented several defendants in class action litigation alleging a conspiracy to fix the price of brand name pharmaceuticals. We defended both direct and indirect purchaser claims in the class context.
• Potash Antitrust Litigation: We represented a defendant in consolidated civil antitrust class actions alleging a conspiracy to raise and stabilize prices of potash in violation of the Sherman Act.
• Minnesota Ass’n of Nurse Anesthetists v. Unity Hosp.: We represented a corporate defendant and individual anesthesiologists in an action alleging violations of Sherman Act Sections 1 and 2; illegal boycott; illegal tying; denial of essential facilities; violations of the Minnesota Antitrust statute, Minnesota Consumer Fraud statute, Minnesota Deceptive Trade Practices statute, and Minnesota Whistleblower statute; tortious interference with contract; breach of implied covenant of good faith and fair dealing; and civil conspiracy. The Eighth Circuit affirmed summary judgment in favor of our clients.
• Business Machines Sales & Service Inc. v. Appleton Papers, Inc.: We represent two defendants as local counsel in an indirect purchaser class action alleging a national price-fixing conspiracy with regard to jumbo rolls of thermal fax paper sold in North America.
• Peridot, Inc. v. Kimberly-Clark Corp.: We represent two defendants in a civil antitrust indirect purchaser class action alleging a conspiracy to artificially inflate the price of commercial tissue paper sold in the United States.
• Represented developer and mortgage broker in a series of claims brought by the Minnesota Attorney General alleging violation of consumer fraud statutes and other trade regulation and consumer protection statutes.
• Defended multiple cases challenging clients’ product distribution practices.
• Successfully defended one of the world’s oldest and most prestigious retailers against a purported federal class of 800+ dealer store owners that challenged the retailer’s ability to sell its popular branded products in other retail formats.
• Representing Gem Shopping Network, a 24/7 television network, in federal court action alleging false advertising, fraud and violation of various state consumer protection statutes.
• Represented one of the nation’s largest providers of advertising and promotions in supermarkets in federal action alleging state and federal antitrust and false advertising claims. This case settled during a jury trial in Minneapolis in 2011.
• Represents the nation’s largest grocery wholesaler in a federal antitrust case in the U.S. District Court for the District of Minnesota challenging an Asset Exchange Agreement with another grocery wholesaler.
• Represented Minntech Corporation, a medical device manufacturer, in a federal antitrust lawsuit by a competitor alleging monopoly leveraging, tying, attempted monopolization. This case was successfully dismissed on summary judgment and argued before the Eighth Circuit Court of Appeals.
• Represented a large, national consumer packaged goods company in a dispute over misleading labeling and advertising concerning the word “natural” and other items.
• Represented a medical products company in claims alleging false advertising and labeling.

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