Share this e-Alert:

Polsinelli - Antitrust Polsinelli - Antitrust Polsinelli - Antitrust Polsinelli - Antitrust Polsinelli - Antitrust Polsinelli - Antitrust Polsinelli - Antitrust


March 2017


Becoming the Target of an Antitrust Lawsuit: Essential Considerations







For more information about this e-Alert, please contact:


Herbert F. Allen


Email | Bio


Gregory M. Bentz


Email | Bio


Mitchell D. Raup


Email | Bio


G. Gabriel Zorogastua


Email | Bio


To learn more about our Antitrust practice, to contact one of our attorneys, or for more Antitrust Intelligence, click here.



Polsinelli - Antitrust Polsinelli - Antitrust Polsinelli - Antitrust Polsinelli - Antitrust View Polsinelli documents on JD Supra  


LinkedIn Twitter Facebook Polsinelli Podcast

Becoming the target of an antitrust lawsuit is a daunting prospect for any business.  Antitrust lawsuits are often time-consuming and expensive to defend, and the consequences of losing a case can be severe.  Under the Sherman Act (the primary federal antitrust statute), a prevailing plaintiff is entitled to treble damages, injunctive relief, and compensation for the costs of bringing the case, including attorneys' fees.  In all but the smallest cases, awards can skyrocket into the many millions of dollars. Antitrust cases can also involve significant reputational harm. In the case of certain conduct deemed per se illegal, like price fixing or bid rigging, there may even be criminal liability.

Although all antitrust cases are different and require individualized strategy and analysis, there are some high-level considerations that apply in virtually all cases.  This alert provides an overview of these considerations.

1.  Engage Qualified Litigation Counsel and Plan Litigation Budget

The first step in responding to an antitrust lawsuit should be to engage counsel with experience defending antitrust lawsuits.  Where possible, defendants should consider engaging counsel with experience in the industry in which their business operates. [More...]

2.  Issue Written Litigation Hold Notices

Both plaintiffs and defendants have a duty to preserve documents and other information that may be relevant to a dispute once they reasonably anticipate litigation.  To comply with this duty, parties should issue written litigation hold letters to key employees and document custodians to ensure that relevant materials are retained and not destroyed as part of routine document deletion. [More...]

3. Consider a Motion for Change of Venue or Motion to Consolidate

If a case is pending in federal court, there are several mechanisms through which a defendant can seek to have the case moved to a different court or consolidated with related cases. A motion for a change of venue can be brought under 28 U.S.C. § 1404 to transfer the case for "the convenience of parties and witnesses" to a different judicial district where the case could have originally been brought. [More...]

4.  Assess the Legal and Factual Sufficiency of the Complaint

Antitrust complaints can have both legal and factual flaws.  Legal problems arise when the facts alleged in the complaint, even when taken as true, do not establish a violation of the laws.  In other words, it may be that what the plaintiff says is illegal is not actually illegal. [More...]

5.  Begin the Initial Fact Investigation   

If the complaint has any merit, the company should direct outside counsel to conduct a privileged, intensive internal investigation to learn the facts, find and preserve evidence, and identify witnesses before the plaintiffs do. This investigation should include review of key correspondence and agreements, and interviews with key employees. [More...]

6. Consider Engaging an Economist

Testimony from economic experts often plays a key role in antitrust litigation. Experts in antitrust litigation testify not just on questions of damages, but also on liability: Has the challenged conduct in fact caused harm to competition in the form of reduced choice or quality, or increased prices?  Can other market factors explain the alleged harms?  Are there procompetitive benefits associated with the defendant's actions that outweigh any harms and make the challenged conduct lawful? [More...]

To view or print the full alert, please click here.

For More Information

To evaluate how you may be impacted by this information, please contact one of the authors, a member of Polsinelli's Antitrust practice, or your Polsinelli attorney.







Atlanta  Boston  Chattanooga  Chicago  Dallas  Denver  Houston  Kansas City  Los Angeles  Nashville  New York
Overland Park  Phoenix  Raleigh  San Francisco  Silicon Valley  St. Joseph  St. Louis  Washington, D.C.  Wilmington








real challenges. real answers.SM  
Polsinelli is an Am Law 100 firm with approximately 800 attorneys in 20 offices, serving corporations, institutions, and entrepreneurs nationally. Ranked #17 for Client Service Excellence among 650 U.S. law firms, Polsinelli has risen more than 50 spots over the past five years in the Am Law 100 annual law firm ranking. Polsinelli attorneys provide practical legal counsel infused with business insight, and focus on health care, financial services, real estate, intellectual property, mid-market corporate, labor and employment, and business litigation. Polsinelli attorneys have depth of experience in 100 service areas and 70 industries. The firm can be found online at Polsinelli PC. In California, Polsinelli LLP.

* 2017 BTI Client Service A-Team Report







Polsinelli provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements.

Copyright © 2017 Polsinelli PC.

Polsinelli Antitrust Antitrust