Antitrust

The practice of antitrust has evolved significantly since its inception in the 19th Century. In the 20th century, trusts were the desired corporate structure chosen to organize businesses. The breakup that was ordered in the Standard Oil and American Tobacco cases of 1911 reflected this newly established legislative effort. “Cartels, horizontal mergers of monopolistic proportions and predatory business tactics” were identified as problems to be solved, as the late Robert H. Bork pointed out in The Antitrust Paradox. Trust Busters were words of endearment. So in order to break up these trusts, the Sherman Act was enacted in 1890 and the concept of “antitrust” was born. Today, the antitrust laws while still concerned with consumer welfare have been widely viewed as the very foundation of our charter of economic rights. As the Sherman Act states, the Act is intended as a “comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade”.  

Antitrust Today
Antitrust now informs most every decision of business. Sills Cummis & Gross counsels a diversified group of clients – from Fortune 100 companies to start-ups, both domestically and internationally-based. We are active in representing clients from the U.S., Canada, China, Japan, Israel  and South Korea.  Whether it is an acquisition or merger, a joint venture, a litigation involving a competitor or customer, a class action or government investigations involving price fixing, boycotts, division of customers or territories or an unfair or deceptive trade practice, our attorneys are zealous and effective advocates for our clients. It is for this reason that Sills Cummis & Gross works closely with our clients not only as lawyers but as business advisors in guiding them through the complexities of the antitrust laws. Our goal is to provide the necessary advice and creative solutions for our clients to meet their business goals and objectives, while minimizing the risk of antitrust exposure.

Several of our attorneys were former trial attorneys with the U.S. Department of Justice, who have experience both in prosecuting and defending cases for criminal and civil litigation matters. Many attorneys have been law professors at law schools in the New York and New Jersey area and have clerked for state and federal court judges. In addition, the Litigation Department of Sills Cummis & Gross has been recognized in 2017 as the Litigation Firm of the year by Benchmark Litigation*.

Our expertise encompasses every practice area of antitrust and numerous industries.   

Areas of Focus
  • Litigation, both criminal and civil in state and federal courts
  • Mergers and acquistions requiring regulatory approvals from the U.S. Department of Justice, Antitrust Division of the U.S. Federal Trade Commission
  • Compliance and counseling
  • Government investigations by federal and state governments
  • Intellectual property
  • Health Care and hospitals
  • International (including cross border transactions and foreign competition authorities)
  • Representation before congressional committees

Industry Representation
  • Financial Services
  • Telecommunications
  • Healthcare, Hospitals and Medical Devices
  • Consumer Goods and Electronics
  • College and Amateur Sports
  • Automotive Parts
  • University Book Stores
  • Natural Resources

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Representative Matters

  • Japanese Auto Parts Investigation by the Department of Justice; Antitrust Division (2012-2016). Price fixing and bid rigging criminal antitrust investigation; represented a senior executive employed by a foreign auto parts manufacturer in a federal, criminal antitrust investigation. The investigation involved allegations that the company participated in a conspiracy with competitors to fix prices and rig bids for auto parts sold in the U.S. The Plea Agreement and Judgment are public documents. A carve in status was secured for the client resulting in his non-prosecution and grant of immunity. Twenty-six Japanese executives have received jail sentences as a result of the Japanese Auto Parts Investigation, the largest investigation in the history of the Department of Justice. Over $2.4 billion in criminal, antitrust fines have been secured against all of the auto parts manufacturers since 2013.
  • Skin Care Company (2014). Represented Defendant, a major skin care company, in a price fixing claim under California's antitrust statute, the Cartwright Act. After having secured our first Motion to Dismiss, the Plaintiff was given leave to amend his claim which he did. The case was then settled for a nominal amount.
  • Electronics Manufacturer (2012). Counseled one of the world’s largest electronics manufacturers on antitrust investigation for alleged price fixing by the U.S. Department of Justice, Antitrust Division.
  • Executive Search Company (2011-2012). Actions in New York State Supreme Court and U.S. District Court for the Southern District of New York involving a business dispute between two competitors: Claims under the Lanham Act, and in contract and tort. Case was settled.
  • European Airline (2011). Represented Europe’s largest cargo airline in multi-jurisdictional antitrust investigation by the U.S. Department of Justice, Antitrust Division. 
  • Polyurethane Manufacturer Antitrust Litigation, U.S. District Court for the Northern District of Ohio (2010). Represented Defendant in a price fixing and allocation of customer case: Two class actions, involving the direct and indirect plaintiffs, along with the opt out and direct plaintiffs. Ongoing litigation. 
  • Acquisition of a Dialysis Corporation (2010). Represented large dialysis corporation in its $120 million sale. The transaction was approved by the U.S. Federal Trade Commission within 20 days.
  • Australian Investment Bank, U.S. District Court for the Southern District of California  (2009). Defended Chairman, CEO and the five most senior officers in a business dispute with a former joint venture partner. Plaintiff’s claims were as high as $100 million, but after Defendants' four counterclaims survived Plaintiffs' Motion to Dismiss, the parties settled the case. This was a significant victory for the client in federal and state civil litigation in California. In order to counter claim against the Plaintiffs, four separate claims were asserted, which survived an lqbal/Twombly Motion to Dismiss. This motion required a heightened pleading standard as set down by the U.S. Supreme Court.
  • College Football Conference. Presented testimony to the U.S. Senate Judiciary Committee on the antitrust violations of the college football structure, the BCS, in 2009.
  • National College Bookseller, West Virginia (2008). Defended booksellers in a price fixing and consumer protection case that resulted in our Motion to Dismiss being granted with prejudice.
  • Global Rubber Marine Hose Investigation by the United States Department of Justice Antitrust Division and various International Regulatory Authorities (2008).  Represented Japanese rubber manufacturer in global investigation of marine hose, a flexible rubber hose used to transfer oil between tankers and storage facilities.  The investigation involved allegations that the company participated in a conspiracy with competitors to fix prices, rig bids and allocate market shares for the global rubber marine hose market.  The investigations led to several company guilty pleas and individual convictions, including the 2014 extradition of an Italian national from Germany to the United States, the first-ever successful extradition on an anti-trust charge for the Department of Justice.
  • Credit Suisse Securities (USA) LLC: et al. v. Glen Billing, U.S. Supreme Court (2007). Submitted Amicus Curiae Brief in support of Petitioner for a leading investment bank arguing for antitrust immunity for permissible underwriting conduct.
  • In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation (2005).  Represented major financial institutions in a nationwide class action filed by merchants and trade associations in the U.S. District Court for the Eastern District of New York alleging anti-competitive trade practices among credit card networks and financial institutions with respect to merchant fees and network rules.
  • Credit Card Company Antitrust Litigation (2001).  Represented major U.S. credit card company in large antitrust civil class action brought by major retailers in the U.S. District Court for the Eastern District of New York. Plaintiffs alleged tying arrangements in violation of Section 1 of the Sherman Antitrust Act and conspiracy to monopolize the debit card market in violation of Section 2 of the Sherman Act stemming from  interchange fees charged for debit card transactions and the requirement for merchants to accept all credit cards.  The matter was ultimately settled on the eve of trial.

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