Antitrust & Trade Regulation
We defend clients in civil and criminal litigation, advise clients in mergers and acquisitions, and counsel clients on avoiding antitrust problems with distribution and marketing arrangements, joint ventures, product development and intellectual property matters.
What We Do
Antitrust and trade regulation law has been characterized as “so vague that businessmen have no way of knowing whether specific actions will be declared illegal until they hear the judge’s verdict – after the fact.”* At Fredrikson, we want our clients to have a better experience.
Clients ask our advice on the full range of traditional and contemporary consumer protection and unfair competition issues relevant to selling products and services. We represent clients in government investigations, enforcement proceedings and private civil litigation. Our attorneys are also adept at establishing corporate antitrust compliance programs.
Areas of expertise include:
Antitrust Counseling and Compliance
In today’s business environment, questions that raise antitrust concerns occur daily in such areas as pricing, product distribution and marketing, joint venture and other distribution arrangements. The goal is to avoid getting sued, and to make sure that if you are sued, the case is defensible. This requires a firm understanding of what the law permits, what it forbids, and when to use common sense.
The attorneys in our Antitrust & Trade Regulation Group take pride in assisting businesses to accomplish their objectives within the bounds of the antitrust laws. We also assist clients in designing and implementing education programs and other preventive measures to ensure that responsible employees are well informed about their own and their employer’s responsibilities in preventing, detecting and reporting antitrust law violations. We design, develop and present antitrust compliance programs and counsel compliance with antitrust developments relevant to relationships with competitors, suppliers and customers.
There is no shortage of antitrust investigators – both domestic and international. At the federal level, the Department of Justice and the Federal Trade Commission are responsible for enforcing federal antitrust laws. Numerous states have also enacted their own antitrust and “Little FTC Acts.” And, as if that were not enough, doing business overseas subjects business to a growing number of international competition laws – some of which are similar to U.S. law and some of which have very significant differences.
Attorneys in the group have experience providing guidance to clients in responding to federal grand jury subpoenas and to federal or state civil investigative demands. We can mobilize resources to review and produce documents and interview witnesses at several locations simultaneously as may be required to comply with the complex demands of federal or state investigations. Our attorneys have considerable experience dealing with the Department of Justice, the Federal Trade Commission and state enforcement authorities at all levels.
There is no shortage of painful stories about antitrust litigation. The process can be costly, even if the lawsuits eventually are won. Long hours of executive time must be devoted to preparation and testifying. Thousands of documents may need to be produced. Simply having to publish descriptions of certain lawsuits in annual reports and other disclosure materials can have an adverse effect on a company’s reputation. And fees for both attorneys and experts are not insignificant. We want our clients to have a better experience.
Our attorneys have represented clients in lawsuits in federal courts in Minnesota and other states against claims under the Sherman, Clayton, Robinson-Patman, and Federal Trade Commission Acts as well as state antitrust statutes. We have successfully asserted or defended a wide variety of product distribution and marketing claims, including price-fixing, bid-rigging, market allocation, group boycotts, refusals to deal, tying arrangements, exclusive dealing and other vertical restraints, price discrimination, resale price maintenance, joint purchasing/buying cooperatives, and covenants not to compete. Our experience includes both class actions and multidistrict litigation.
Consumer protection has become a fashionable element of antitrust and trade regulation law as government has stepped in and established a series of laws impacting such diverse contemporary consumer marketing issues as privacy and data protection, product labeling, safety, recalls and warranties.
Increasingly, we are asked to evaluate client compliance with privacy and data protection practices. We not only evaluate clients’ existing practices, but we also offer advice on how to structure marketing practices to meet federal and state marketing law requirements, including concerns with the Children’s Online Privacy Protection Act, CAN-SPAM Act, and telemarketing restrictions, state privacy, and data breach notification laws.
We advise clients with respect to product recall determinations and related health and safety risk analysis, including issues arising under the Consumer Products Safety Act and the Consumer Products Safety Improvements Act of 2008. We also have served as defense counsel and national coordinating counsel in multi-state liability cases.
At one time, a “warranty” was virtually anything a seller said it was. This resulted in a mixture of outcomes, and warranty protection was often illusory. Dissatisfaction led to a comprehensive national consumer warranty law enacted in 1974. Consequently, we work with clients to bring some order to their warranty practices.
Product Development and Intellectual Property
New product development normally is a joint effort between technical and marketing business professionals. Creation of a new product may involve entirely new inventions or simply new versions of existing products. If the product is truly innovative, it may be patentable, or it may involve trade secrets that need to be protected. A new brand-name may need to be developed, or it may be sold under an existing trademark. In any event, packaging will have to be designed and certain labeling may be required. Our experience with the full range of challenges presented by new products frequently benefits clients.
All firms that rely on intellectual property rights face increasing challenges. Standard setting and patent pool issues have become part and parcel of licensing formation, disputes and IP litigation. Probably no other area of antitrust law involves so many high-profile government and litigation disputes. The law is continually evolving. Our attorneys have substantial experience representing clients in matters relating to antitrust risks arising from actual or potential misuse of intellectual property rights, how standards are agreed upon, and how patent pools are formed to license the patents necessary to practice applicable standards.
Unfair Competition in Advertising and Selling
Consumers have to be convinced to buy products. Advertising and sales campaigns raise a host of trade regulation issues. Promotional programs run in cooperation with dealers must be administered fairly. Advertising and sales presentations must be substantiated and not deceptive or unfair. Consumer promotions like sweepstakes and contests must comply with both federal and state laws.
We have prosecuted and defended claims of false advertising, unfair competition, product disparagement and grey marketing under federal and state law. Our attorneys understand both the technical and practical application of the laws regulating advertising allowances and other merchandising payments and services.
Structuring Distribution Arrangements
There are many ways for a supplier to bring its products to market. It may sell directly through employees to the ultimate user. It may sell through commissioned sales agents who do not take title. It may sell to independent wholesalers or distributors. It may establish franchises that operate under the supplier’s trademarks. It may license others to sell its products. The alternatives are limited only by the supplier’s imagination and the business and legal environment.
Sometimes one of the most fundamental business challenges is actually defining the structure of the distribution system, particularly when the supplier wishes to exert some degree of control over the manner in which dealers, distributors and others sell the products. The contractual arrangement between the parties is the best way to spell out the “rules of the road” between the supplier and its resellers. Our attorneys know what you can and cannot include in these contracts and work with clients to make sure that they are provided with every advantage in structuring their distribution relationships.
Mergers and Acquisitions
Merger control is a unique product of history, political debate and intense bargaining. The Clayton Act, including Section 7 addressing merger enforcement, was originally enacted in 1914. In 1950, Section 7 was amended to broaden its coverage. Since then, but particularly during the last thirty years, merger enforcement has been a central mission of U.S. antitrust enforcers. During this period, merger analysis has evolved from the relatively rigid approach of the 1960s to today’s more flexible standard.
Attorneys in the Antitrust & Trade Regulation Group assist clients with issues related to mergers and acquisitions, including Hart-Scott-Rodino pre-merger and international notifications, negotiations with federal and state regulators (both for clients seeking merger approval and for clients opposing a merger), administrative filings, and corporate restructuring.
Our work has acquainted us with many industries, including: Agriculture, Automotive, Beverages, Computer Hardware and Software, Consumer Goods, Dairy and Food, Energy, Health Care, Industrial Adhesives and Chemicals, Internet, Manufacturing, Pesticides, Retail, and Technology.
In re: Vitamins Antitrust Litigation. We represented a defendant in ongoing civil antitrust proceedings (both state and federal court) alleging worldwide vitamin price-fixing.
In re: Milk Products Antitrust Litigation. We represented a defendant in civil and criminal antitrust proceedings in connection with alleged price-fixing of milk products. This included defense of both direct and indirect purchaser class action claims, a parens patriae claim by the Minnesota Attorney General and a grand jury investigation by the U.S. Department of Justice.
In re: Brand Name Pharmaceuticals Antitrust Litigation. We represented several defendants in class action litigation alleging a conspiracy to fix the price of brand name pharmaceuticals. We defended both direct and indirect purchaser claims in the class context.
In re: Potash Antitrust Litigation. We represented a defendant in consolidated civil antitrust class actions alleging a conspiracy to raise and stabilize prices of potash in violation of the Sherman Act.
Minnesota Ass'n of Nurse Anesthetists v. Unity Hosp. We represented a corporate defendant and individual anesthesiologists in an action alleging violations of Sherman Act Sections 1 and 2; illegal boycott; illegal tying; denial of essential facilities; violations of the Minnesota Antitrust statute, Minnesota Consumer Fraud statute, Minnesota Deceptive Trade Practices statute, and Minnesota Whistleblower statute; tortious interference with contract; breach of implied covenant of good faith and fair dealing; and civil conspiracy. The Eighth Circuit affirmed summary judgment in favor of our clients.
Business Machines Sales & Service Inc. v. Appleton Papers, Inc. We represent two defendants as local counsel in an indirect purchaser class action alleging a national price-fixing conspiracy with regard to jumbo rolls of thermal fax paper sold in North America.
Peridot, Inc. v. Kimberly-Clark Corp. We represent two defendants in a civil antitrust indirect purchaser class action alleging a conspiracy to artificially inflate the price of commercial tissue paper sold in the United States.
Represented developer and mortgage broker in a series of claims brought by the Minnesota Attorney General alleging violation of consumer fraud statutes and other trade regulation and consumer protection statutes.
Defended multiple cases challenging clients’ product distribution practices.
Successfully defended one of the world’s oldest and most prestigious retailers against a purported federal class of 800+ dealer store owners that challenged the retailer’s ability to sell its popular branded products in other retail formats.
Representing Gem Shopping Network, a 24/7 television network, in federal court action alleging false advertising, fraud and violation of various state consumer protection statutes.
Represented one of the nation’s largest providers of advertising and promotions in supermarkets in federal action alleging state and federal antitrust and false advertising claims. This case settled during a jury trial in Minneapolis in 2011.
Defended one of the nation’s largest consumer packaged food companies against a class action challenge that is gift certificate program was unlawful under California law. The trial court’s order sustaining the demurrer to the complaint was upheld by the California Court of Appeals.
Represents the nation’s largest grocery wholesaler in a federal antitrust case in the U.S. District Court for the District of Minnesota challenging an Asset Exchange Agreement with another grocery wholesaler.
Successfully defended two of the nation’s leading drug store chains in a series of federal and state court consumer class actions challenging the chains’ use of “Made in USA” claims.
Represented Minntech Corporation, a medical device manufacturer, in a federal antitrust lawsuit by a competitor alleging monopoly leveraging, tying, attempted monopolization. This case was successfully dismissed on summary judgment and argued before the Eighth Circuit Court of Appeals.