Wilson Sonsini’s “Antitrust Conversations” video series features attorneys in the firm’s antitrust and competition practice discussing topics of interest to clients, including preparing for litigation and the complexities of antitrust class actions, avoiding criminal violations, and Fundamentals of Antitrust Law. The series will include one-on-one discussions, Q&A with the members of See more +
Wilson Sonsini’s “Antitrust Conversations” video series features attorneys in the firm’s antitrust and competition practice discussing topics of interest to clients, including preparing for litigation and the complexities of antitrust class actions, avoiding criminal violations, and Fundamentals of Antitrust Law. The series will include one-on-one discussions, Q&A with the members of the practice, and more.
**This video is for informational purposes only. It is not intended to create an attorney-client relationship or constitute an advertisement, a solicitation, or professional advice as to any particular situation.**
There are five things that I recommend that a company can do right now to help position themselves well, should they need to be involved in antitrust litigation in the future.
The first is, do an objective assessment of your goals and your risks, as they might be related to litigation. In terms of your goals, are there practices in the industry or things coming down the pike that you don’t like and that you may need to challenge? Is a dispute with one of your competitors brewing? On the other side, are there risks that you face? Are there new investigative priorities coming out of the agencies that you may get swept up into? If you can spend a few minutes every six months to a year really thinking about what your risks are or where you might want to be litigating you can start preparing for that.
The second thing, and it’s certainly related to the first, is to think about the third parties or the other companies that you might want to call on if you were to get involved in antitrust litigation. Antitrust litigation is almost never just about the plaintiff and the defendant. We almost are always going to talk about what the relevant market is, what’s going on in the industry, who are the other competitors, and then what do suppliers or customers think about particular products or practices. Thinking about that early and cultivating those relationships will pay huge dividends if you do ever end up in litigation.
The third thing that companies can do now, before they’re actually involved in litigation, is do a critical and objective review of your compliance policies. What I mean is get a litigator to look at what those policies look like and how they’re written and do a red team exercise to see if they’re actually going to play well if those were to be publicized in an antitrust litigation. Even the most well-intentioned and accurate comprehensive compliance policies can sometimes be written in a way that’s not going to play well should they see the light of day. And we litigators can generally twist just about anything into something that looks nefarious. So spend a little bit of time with an antitrust litigator to get them to go through your policies and see if they should be tweaked a little bit, just so they present your company’s efforts at compliance in the best possible light.
The fourth thing that companies can do now to set themselves up well for antitrust litigation is to do a review of your document hygiene. And what I mean by that is from thinking about do you have a document retention policy? Many early-stage companies do not, and do not organize their documents in any particular way. Now that’s a judgment call and that may be how folks want to run their business. But get a litigator involved to just think through the implications of a document retention policy, or the lack thereof, for the litigation risks or objectives that you might be facing. If you think you may be facing litigation, make sure that your policies on document retention are clear and well documented, and that it’s something that you would be proud to defend if you had to do it in court.
The fifth piece of advice that I have for companies to prepare for antitrust litigation before it happens is to make a plan about who you’re going to call. Litigation can come out of nowhere, it often does. I hope that it doesn’t for you, but have a plan, have a trusted antitrust litigator that you can call if something unexpected happens or if you have a question about the litigation implications of something, whether you should or shouldn’t do something, we’re always happy to give quick advice on some of those issues or build a deeper relationship but you want to have someone that the in-house lawyers can call or that the business folks can call if they don’t have an in-house legal department so that you have a first line of defense if you do get hit with something unexpected. And you can put some procedures in place to make sure that there are no missteps on day one of a litigation. See less –