Competition counsel for the deals you do and the conduct you run. We handle merger clearance, pricing and distribution risk, and matters before the DOJ and FTC, and we read each one the way a regulator will before it lands on your desk.
Until 2023 a benchmarking exchange among competitors sat inside a safe harbor if the data was at least three months old, aggregated by a third party, and drawn from at least five firms. The Justice Department and the FTC withdrew it, and a trade-association survey that was routine in 2022 now has to be defended on its own facts, as does the pricing meeting it fed.
Price fixing, bid rigging, and market allocation are per se offenses that carry up to ten years in prison for individuals. Exclusivity and most-favored-nation terms are judged on the evidence, and the evidence is usually the deal model and the sales team's email. The 2023 Merger Guidelines presume a deal unlawful when a market's concentration index passes 1,800 and the deal adds more than 100 points, and the agencies have kept that test.
We advise companies, boards, and investors before the practice rolls out or the deal signs, and we represent clients in matters before the DOJ Antitrust Division and the FTC. Where a deal also needs clearance abroad, we coordinate with locally admitted counsel so every filing tells one story.
Hart-Scott-Rodino notifiability analysis, premerger filings, and clearance strategy, with the competitive-effects assessment built into the deal before signing and second-request response planning where a transaction draws scrutiny.
Review of pricing, discounting, exclusivity, and most-favored-nation terms against the law on monopolization, unfair competition, and unlawful agreement, so a commercial practice is defensible from the day it rolls out.
Counsel on distribution, supply, franchising, and resale terms, with territorial and customer restrictions, exclusivity, and dual-distribution structures drafted to achieve the commercial aim within the competition rules that govern it.
Guidance on joint ventures, standard-setting, benchmarking, and trade-association participation, with information-exchange protocols that let legitimate collaboration proceed without creating an inference of unlawful coordination.
Antitrust compliance policies, training for commercial and sales teams, document and communication discipline, and privileged internal review when a question surfaces, with the guardrails set before a problem forms.
Representation in matters before the DOJ Antitrust Division and the FTC on merger clearance, civil investigative demands, and conduct inquiries, coordinating with locally admitted competition counsel where a foreign regulator is involved.
The premerger notification form in force since February 2025 asks for a narrative of each overlap and supply relationship between the parties, for the deal-team lead's documents, and for ordinary-course plans and reports. A filing that once took days now takes weeks, so the HSR work starts with the term sheet, not the signing.
Price fixing, bid rigging, and no-poach agreements between employers are prosecuted as crimes. The Antitrust Division's leniency program protects the first company to report a cartel and its cooperating employees from prosecution; the second to arrive gets, at best, cooperation credit. A compliance hotline that surfaces the problem early is worth more than the manual.
In a competition matter the contemporaneous record of emails, board decks, and deal models often matters more than the contract. Communication discipline and a compliance culture are part of the legal strategy.
Section 8 of the Clayton Act bars one person from serving as a director or officer of two competing companies above a size threshold adjusted each year, and the Antitrust Division has forced resignations since 2022. Private-equity sponsors with portfolio companies in the same sector check their board rosters against it before an appointment.
Since mid-2025 Washington and Colorado have required parties to a reportable deal with a connection to the state to send the state attorney general a copy of the HSR filing the same day, and other states have introduced the same model act. A merger timeline now carries a state-notice step beside the federal one.
Where a matter reaches a foreign competition regulator or requires an economist's testimony, we coordinate with locally admitted counsel and economists so the analysis holds up in every forum it reaches.
Before signing, we build the market the way the agency will, from product overlaps, share estimates, and customer switching to the deal documents' own language, and we write HSR notifiability, filing timing, and any remedy contingency into the merger agreement itself.
The premerger notification goes in with a record already disciplined: competitive-effects narrative aligned, ordinary-course documents reviewed, and counsel fielding staff questions through the initial waiting period.
If the DOJ or FTC issues a second request, the response becomes a matter unto itself. Custodians, data productions, economist work, and advocacy meetings run on a negotiated timetable, with the deal clock and the outside date managed in parallel.
The waiting period expires or a resolution is negotiated, and the work turns forward: integration planning that respects gun-jumping limits until close, and pricing, distribution, and information-exchange guardrails for the combined business afterward.
The agencies will read your documents as your theory of the deal, so write them that way from the first draft.
Three kinds of exposure. The first is the deal: whether a transaction must be notified under the Hart-Scott-Rodino Act, how the agencies will read the overlap, and what the merger agreement says about remedies and the outside date. The second is conduct: pricing, exclusivity, and the terms a company sets for distributors and suppliers, judged under the Sherman Act and Section 5 of the FTC Act. The third is collaboration: joint ventures, standard-setting, and the information that passes through trade associations. We counsel on all three before they become an inquiry, and we represent clients in matters before the DOJ Antitrust Division and the FTC when one does.
Notification is required when the deal value exceeds the size-of-transaction threshold, which the FTC revises each year, and, for deals below a higher threshold, when the parties also meet a size-of-person test. The parties then wait 30 days before closing, or 15 for a cash tender offer. Below the thresholds there is no safe harbor: the agencies can and do challenge consummated deals under Section 7 of the Clayton Act, and a roll-up of small acquisitions can be reviewed as a series. We assess reportability at the term sheet and write the clearance mechanics into the agreement.
Yes. We represent clients in matters before the DOJ Antitrust Division and the Federal Trade Commission on merger clearance, second requests, and conduct inquiries. We appear for the companies in front of those agencies, and we coordinate with locally admitted counsel where a matter reaches a foreign competition regulator.
The conduct that draws the agencies is ordinary. Agreements with competitors on price, output, or territories are per se unlawful, and so, in the agencies' view, are naked no-poach and wage-fixing agreements between employers, which the Justice Department has prosecuted criminally since announcing the policy in 2016. Resale price maintenance, exclusivity, and most-favored-nation clauses are judged under the rule of reason, which means by their market effect. Benchmarking and trade-association exchanges lost their safe harbor in 2023, and the Robinson-Patman Act on price discrimination, dormant for decades, returned to the FTC's docket in 2024.
In two ways a general counsel can measure. The Antitrust Division's 2019 guidance, updated in 2024, lets prosecutors credit an effective program at the charging and sentencing stages, which was not the Division's position before then. And the program is what finds a problem early enough to use the leniency program, where only the first company to report is protected. The working parts are training for the people who meet competitors, written rules for information exchange, and a preservation policy that reaches collaboration tools and disappearing messages. The hotline matters as much as the manual.
Yes, and the regimes are not alike. The European Commission's merger review is suspensory: a notified deal cannot close until Phase I ends, 25 working days after a complete filing, and a Phase II inquiry adds 90 more. The United Kingdom's regime is voluntary, but the Competition and Markets Authority can call a deal in after closing and order it unwound. The parties' own documents travel to every regulator, so an overlap described one way to the FTC and another way to the Commission in Brussels is a problem of the parties' own making. We coordinate the US analysis with locally admitted competition counsel so the filings agree.
Premerger notification, antitrust risk assessment, and second-request response, with the competitive-effects analysis built into the deal before signing.
Explore →Buy-side and sell-side transactions from letter of intent through closing, covering structuring, diligence, and negotiation, with antitrust clearance built into the deal timeline.
Explore →Securities, disclosure, and governance counsel for listed companies and those approaching the public markets, where competition review and reporting obligations intersect.
Explore →Board structure, fiduciary duty, and federal and state securities compliance, the governance framework that carries a company through a regulated transaction.
Explore →Reviewed by Jonathan D. Herpy, Sr., Senior Partner · Last updated October 2026 · Educational overview · Not legal advice
One partner is accountable for the whole matter, and you have that partner's direct line. Chicago, London, and Dubai work to the same standard.