Practice Areas & Industries: Sutherland Asbill & Brennan LLP

Practice/Industry Group Overview

Sutherland Asbill & Brennan LLP has a long, notable tradition in the field of antitrust and trade regulation. One of the firm's founding partners, Mac Asbill, Sr., served as a section chief in the Antitrust Division of the U.S. Department of Justice during the Roosevelt Administration. Since then, the firm's partners have served with distinction in government positions and in the leadership of the private antitrust bar.

The firm's antitrust practice is extensive and varied. We are regularly called upon to advise clients how to comply with the antitrust laws and to assist them in developing strategies consistent with those laws. We represent clients in investigations by federal and state government authorities, in arbitration proceedings, and in litigation before administrative agencies and state and federal courts, including the United States Supreme Court. Our antitrust practice relates to a wide range of business activity, including --

• Mergers, acquisitions, and joint ventures;
• Horizontal restraints, including industry standard-setting, agreements ancillary to joint ventures, price-fixing, boycotts, and customer and territorial allocations;
• Distribution practices, including franchising arrangements, price discrimination, tying arrangements, exclusive dealing, and customer and territorial restraints; and
• Allegations of monopolization or attempted monopolization.

We also are experienced in handling --

• Consumer protection matters, including challenges over various advertising, labeling and marketing practices; and
• Other matters, such as business torts and the licensing of intellectual property.

Services Available

Mergers, Acquisitions and Joint Ventures

We have had extensive experience in handling all antitrust aspects of mergers, acquisitions, and joint ventures and have represented a wide variety of clients, both domestic and foreign, in such transactions. We are experienced in --

• Evaluating potential antitrust risks associated with transactions contemplated by our clients;
• Structuring transactions to reduce antitrust risks or achieve other appropriate client objectives;
• Preparing premerger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act and under the Defense Production Act ("Exon-Florio");
• Handling "second request" and other investigations initiated by the U.S. Department of Justice, the Federal Trade Commission, and state antitrust enforcement agencies; and
• Defending the legality of transactions in litigation brought by the enforcement agencies or private parties.

We have been involved in both contested and uncontested acquisitions and, in the case of contested acquisitions, have represented both offerors and targets. We also have extensive experience in structuring and counseling joint ventures, particularly in regulated industries such as banking, energy and insurance.

Horizontal Restraints

We also provide counseling and litigation services in the area of horizontal restraints -- that is, agreements or understandings among competitors affecting price and other competitively sensitive subjects. This can be a high risk area in which the line between permissible and impermissible conduct is often not clear, particularly in the context of various joint venture arrangements. Our experience in this area includes --

• Advising standard-setting organizations, trade associations, joint ventures, and individual firms on the legality of contemplated standard-setting, pricing and other types of collective activities;
• Structuring business arrangements to reduce antitrust risks;
• Preparing compliance programs tailored to individual client needs and business characteristics;
• Representing corporations and individuals in connection with grand jury investigations into possible criminal conduct;
• Representing corporations and associations in connection with civil investigations by the U.S. Department of Justice, the Federal Trade Commission, and State attorneys general;
• Negotiating plea agreements to resolve criminal cases and consent orders to settle civil cases; and
• Defending the legality of business arrangements or other challenged activities in litigation brought by the enforcement agencies or private parties.

Distribution Practices

The firm regularly advises clients concerning a wide range of issues relating to the distribution of products and services. Typical issues include --

• The structure of contractual provisions relating to the terms of sale, such as supply guarantees, "most favored nation" clauses, "right of first refusal" clauses, and "take or pay" clauses;
• The design under the Robinson-Patman Act of volume pricing structures, incentive pricing structures, cooperative advertising restrictions, and other differential prices and allowances;
• Restrictions upon customers to whom or territories in which a distributor or dealer may sell;
• Restrictions upon the resale price that a distributor or dealer may advertise or charge;
• Restrictions upon the competing lines that a distributor or dealer may carry, and restrictions upon the number of distributors or dealers that a manufacturer may use in a given territory;
• The design of product and service packages or other arrangements that might be viewed as "tying"; and
• A wide range of other restrictions that are involved in franchising arrangements.

We also have extensive experience in litigating Robinson-Patman, "tying," and other types of distribution cases, representing both plaintiffs and defendants.

Consumer Protection

We frequently advise clients in the consumer protection field and represent their interests before state and federal enforcement authorities and in private and government litigation. Typical matters include --

• The substantiation of advertising and labeling claims,
• The determination of implied messages in advertisements and labels;
• Compliance with rules and standards governing mail-order sales, door-to-door sales, product testimonials, and other marketing practices;
• Compliance with specialized labeling requirements governing various industries, such as alcohol, tobacco, food, drugs, and cosmetics; and
• Compliance with rules governing the sale of franchises.

Other Matters

The firm regularly addresses a wide range of other issues during the course of its antitrust and trade regulation engagements. Examples of such issues include -

• Business torts under state statutory and common law,
• Restraints in patent, trademark, or other intellectual property licenses;
• Interlocking directorates;
• Competition issues arising in the context of regulated industries, such as telecommunications, energy, health care, and financial services; and
• Legislative counseling and representation with respect to antitrust and trade regulation matters.

Representative Industries

In the course of our antitrust and trade regulation practice, we have handled matters involving many different lines of business, including the following: aggregates, aircraft components, automobile parts, aviation, ball bearings, beer, boats, brick, cable television, cement, chemicals, colleges and universities, computer equipment and services, construction materials, consumer electronics, credit card portfolios, dairy products, data processing, electronic funds transfers, engineering services, engines, financial services, food products, gases, glass, hazardous waste facilities, hospitals, industrial machinery, insurance, mining, mobile homes, non-food consumer products, office equipment, optometry, packaging materials, paving and road construction, pet food, petroleum refining, pharmaceuticals, photographic equipment and supplies, pipe, rubber hose, semiconductor fabrication equipment, soft drinks, telecommunications, tractors, and waste removal services.