What Is Antitrust Litigation Law?

A contentious area of law that maintains fairness for consumers

By Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on February 1, 2023

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Federal and state-specific antitrust laws promote open markets and a free economy in which competition improves products and services. These laws also provide various types of consumer protection. Both federal and state antitrust laws recognize that the economy is dynamic. Businesses and consumers alike can flourish more readily when more choices for goods and services are available in the market. Antitrust laws target activities by individuals and business entities that are designed to limit competition. The Federal Trade Commission (FTC) has a specific Bureau of Competition that enforces federal antitrust laws. The Antitrust Division of the Department of Justice is also involved in enforcing federal antitrust laws. States have state-based agencies that also investigate and enforce state antitrust laws.

Antitrust Litigation – What You Need to Know

  • There are many antitrust regulations under both federal and state law.
  • Consumers have various protections under both depending upon the specific issue and the state in which they reside or do business.
  • According to the FTC, antitrust laws “form the foundation of our free economy” by promoting consumer interests and supporting “unfettered markets.”
  • Through antitrust laws, consumers have access to more choices in the market for goods and services, and consumers have access to lower prices.

What is Antitrust Litigation?

Individuals and business entities must comply with federal and state antitrust laws, and issues of antitrust law violations often arise in business mergers and acquisitions. When individuals and entities are involved in claims of antitrust law violations, litigation often occurs. Antitrust litigation can involve many different matters arising under state or federal antitrust laws, from price-fixing to unfair competition law, including but not limited to:
  • Price fixing: Price fixing is an agreement that competitors make to raise, lower, or stabilize prices or terms so that there is less competition in the market and prices rise.
  • Group boycotts: When competitors agree amongst themselves to boycott another business to gain power in the market, that type of agreement can violate antitrust laws.
  • Bid rigging: Bid rigging can involve many different types of actions, but it involves businesses coordinating with one another to win a business contract.
  • Market division and customer allocation: Any agreement among businesses to divide regions of their respective markets or allocate customers can violate antitrust laws.
  • Monopolization: Monopolization involves unlawful attempts to gain control or possession of a particular good or service in the market. Monopolization attempts can take various forms, including price discrimination and exclusive dealing.
  • Price discrimination: Price discrimination involves selling the same goods or services to different customers for different prices based on what the seller believes it can get from the customer.
  • Franchise disputes: Franchise disputes can take many different forms, and some of those disputes can involve allegations of unlawful antitrust behavior.
  • Unfair competition: Many unfair competition claims resulting in antitrust litigation are brought under state laws. These cases involve claims of deceptive or wrongful business practices that result in economic injuries.
  • Resale price maintenance: These types of agreements, often known by the acronym of RPM agreements, prevent competition when resellers of types of products agree on fixed prices or reselling goods at prices above a specific price point.
  • Information exchanges: When competitors share information designed to give them an unfair advantage and raise prices, this type of information sharing can violate antitrust laws and result in antitrust litigation.
  • Intellectual property disputes: Some types of intellectual property disputes can involve antitrust issues and matters of unfair competition. Depending upon the facts of the case, an intellectual property dispute may result in antitrust litigation.
  • Challenges to proposed mergers and acquisitions: Mergers and acquisitions are often involved in antitrust litigation since mergers and acquisitions can sometimes result from an attempt to gain an unfair competitive advantage. Multiple parties may have the ability to challenge a proposed merger or acquisition on antitrust grounds.
Antitrust litigation can involve private disputes or investigations conducted by government enforcement agencies. In some cases, antitrust litigation will be international and involve alleged violations of international laws or private parties across national jurisdictions.

Federal Antitrust Laws

Three primary federal antitrust laws exist. Those laws include the following:
  • The Sherman Act. This federal law prohibits unreasonable trade restraints, including “every contract, combination, or conspiracy in restraint of trade,” as well as “monopolization, attempted monopolization, or conspiracy or combination to monopolize.” Government agencies and private parties can initiate claims or litigation under the Sherman Act.
  • The Clayton Act. This federal law prohibits antitrust actions or behaviors that are not expressly prohibited by the Sherman Act, including certain mergers where the merger “may be substantially to lessen competition, or to tend to create a monopoly.”
  • The Federal Trade Commission Act (FTC Act). This federal statute prohibits “unfair methods of competition” and “unfair or deceptive acts or practices.” It is essential to know that Sherman Act violations are also FTC Act violations, which means antitrust litigation may involve the FTC Act when a government investigation institutes the case.

Antitrust Law Enforcement and Litigation

When antitrust cases arise, they are most often a result of federal or state agencies initiating enforcement actions against individual or business entities. The federal government enforces antitrust laws through the FTC and the U.S. Department of Justice (DOJ) Antitrust Division. Antitrust litigation can arise when a business is under investigation for alleged violations of existing antitrust laws. The case may be civil or criminal, depending upon the specific circumstances. Companies can take steps to avoid federal government investigations into alleged antitrust law violations by seeking help from an attorney to remain in compliance before a business purchase or merger. However, a federal antitrust investigation may be triggered, and litigation may ensue following the delivery of premerger notification filings before a merger or acquisition, as a result of a Congressional inquiry, or due to a report from another business or consumer. Investigations may be resolved without litigation, including when a company agrees to a consent order and complies with agreed-upon steps to avoid antitrust law violations. States can also initiate antitrust law violations, and in some cases, litigation can result from the investigation. Cases may arise out of alleged violations of state antitrust laws, or state attorneys general may file antitrust lawsuits against businesses on behalf of another person or entity within the state. In some circumstances, federal and state investigators may work together on an investigation that ultimately may result in a court case brought under federal law. Antitrust litigation also arises when private parties, including other business entities, file lawsuits. A private plaintiff can file a claim under the Sherman Act or the Clayton Act to seek damages for violations of antitrust laws. Many state antitrust laws allow private parties to bring lawsuits against other private parties for violations. Sometimes litigation involving private parties is international in scope. A foreign business might sue an American private business, or vice versa, depending upon the nature of the case and the alleged antitrust violations. These cases involve goods or services that affect consumers in the U.S. and American companies doing business internationally.

Common Questions About Antitrust Litigation

Antitrust lawsuits are complex and high-stakes cases. If you need to move forward with antitrust litigation to enforce existing law, or if your business is facing antitrust claims, it is crucial to prepare for your meeting with an antitrust litigation lawyer. The following are examples of questions you may want to consider asking your lawyer when you meet:
  • Which specific antitrust and competition laws are related to my case?
  • Will my case involve issues of state or federal antitrust laws?
  • What is anticompetitive conduct?
  • What steps do I need to take now to prepare for antitrust litigation?
  • What are the potential outcomes of antitrust litigation in cases like the one I am involved in?
  • What should my business do now to avoid raising concerns about antitrust law violations?
  • Can I participate in an ongoing antitrust class action?
  • What are multi-district litigation (MDL) class action lawsuits?
  • Should I litigate my case in state or federal court?
  • Does my case qualify for arbitration or mediation?

Finding the Right Attorney for Your Needs

It is essential to approach the right type of attorney—someone with a proven track record who can help you through your entire case and provide top-notch advocacy. To do so, you can visit the Super Lawyers directory and use the search box to find antitrust attorneys based on your legal issue or location. To help you get started, you may want to consider looking for a lawyer who specializes in the antitrust litigation practice area.

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