Antitrust and Competition

Duane Morris attorneys represent and counsel international, national and regional business entities on all aspects of antitrust and competition law.

Range of Services

Antitrust and Trade Litigation

Duane Morris trial lawyers represent clients in individual and class private treble damage actions, including matters between business entities and multi-district class actions, and direct and indirect purchaser actions following government investigations. We have litigated matters involving claims of monopolization, attempted monopolization and conspiracies to monopolize, the competitive effects of mergers and acquisitions, price restraints, output restraints, group boycotts or collective refusal to deal, exclusive dealing, tying, price discrimination, dealer termination, territorial restraints, restrictive covenants or noncompetition agreements, improper assertions of patents and other intellectual property rights, state unfair trade practice claims, trade secret and Lanham Act unfair competition and trademark claims and matters involving exemptions or immunities, including the state action doctrine and the Noerr-Pennington doctrine, and the McCarran-Ferguson Act. In addition, we have represented clients in international trade matters, including matters before the International Trade Commission, and consumer protection matters, including recent Federal Trade Commission seizure and enforcement under the Can Spam Act.

Grand Jury Investigations

Duane Morris represents individuals and corporations indicted for criminal violations of the antitrust laws and companies that have received grand jury subpoenas. We have represented clients in alleged price fixing and other grand jury investigations. In conjunction with our White-Collar Criminal Defense, Corporate Investigations and Regulatory Compliance practice, we conduct internal investigations and counsel clients in connection with such investigations. Where clients receive subpoenas, we have developed programs for the systematic review and production of documents subpoenaed by the grand jury and the interviewing of witnesses, to help persuade the government that the client is innocent of wrongdoing. We also counsel clients regarding leniency programs, and implications regarding follow-on civil litigation. Where appropriate, we have taken matters to trial.

Mergers and Acquisitions

Duane Morris provides services for clients involved in mergers and acquisitions, including assessing exemption from and, where applicable, compliance with the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and Federal Trade Commission and Department of Justice investigations of and litigation relating to mergers and acquisitions. In addition to general antitrust practice, we handle matters arising under the Bank Merger Act and Bank Holding Company Act relating to mergers and acquisitions in the banking industry, including informal and formal investigations by the Department of Justice and obtaining regulatory approvals from bank regulatory agencies in transactions in which detailed competitive analysis is required based on bank merger antitrust screens.

Antitrust Compliance and Counseling

We advise clients, including manufacturers, distributors, licensors, financial institutions, healthcare institutions, insurance companies, joint ventures, trade associations and other collective organizations, on compliance and risk avoidance in a variety of contexts to minimize the potential for antitrust violations and liability. Our counseling includes advice relating to the Federal Trade Commission and Department of Justice Horizontal Merger Guidelines, Antitrust Guidelines for Collaboration Among Competitors, Statements of Antitrust Enforcement Policy in Health Care, and Antitrust Guidelines for the Licensing of Intellectual Property. In addition to generalized audits and compliance programs, we regularly counsel clients on antitrust risks and compliance in connection with potential transactions, business and distribution arrangements, pricing practices and other conduct.

Industries Served & Highlights of Practice

Duane Morris antitrust and competition lawyers have represented clients or provided counsel in matters involving:

  • the healthcare industry
  • pharmaceutical companies
  • the banking and financial services industry
  • the insurance industry
  • the computer industry, including software and licensing
  • memory chips, semiconductor manufacturing and related technology
  • TFT-LCD thin panel displays
  • the automotive industry
  • the energy industry, including electricity, oil and natural gas
  • office service products and imaging equipment, maintenance, parts and service
  • limited distribution hair care products systems and outlets
  • retail product distribution
  • the shipping industry
  • chemicals
  • government contracting
  • convenience stores
  • golf equipment
  • electrical supplies
  • paper and corrugated containers
  • construction and building materials and plumbing fixtures
  • tobacco products
  • educational institution accreditation
  • publishing
  • carbon brushes
  • boxed candies
  • televisions
  • concrete pipes
  • patents, copyrights and other intellectual property

Healthcare Antitrust

We have defended healthcare institutions accused of antitrust violations with respect to denial of hospital staff privileges. Our lawyers have tried, as well as defended to secure summary judgment or satisfactory settlement, cases involving healthcare providers and vendors of healthcare supplies charged with conspiracy under Section 1 of the Sherman Act and monopolization under Section 2 of the Sherman Act. In addition, we counsel individual business entities and collective groups in the healthcare field on antitrust compliance, including application of the FTC and Department of Justice Statements of Antitrust Enforcement Policy in Health Care. We have litigated matters involving issues of buyer-side market power, and cases involving application of detailed product market and geographic market analysis.

Banking & Financial Services Antitrust

We represented one of several credit card issuers in antitrust litigation relating to Visa and MasterCard rules enjoined in an earlier action brought by the Department of Justice, and have represented one of several banks in an action involving claims that banks conspired to fix "prime rates." We have also represented financial institutions in claims alleging attempted monopolization of the offshore drilling industry and financing for that industry, and claims against lenders under the antitying provisions of the Bank Holding Company Act. We have a long-standing bank merger antitrust practice and have presented competitive analysis of many transactions to the Department of Justice and bank regulatory agencies which have been cleared with no or minimal divestiture, notwithstanding bank merger antitrust screens indicating the need for competitive review. We have assisted many large bank holding companies and bank chains in the statewide and interstate expansion of their branch networks. We prepare antitrust compliance programs, competitive briefs for use in banking applications and other regulatory filings, and detailed analysis for the planning of mergers, acquisitions and divestitures. We represent our clients through informal and formal investigations and in court, if necessary.

Insurance Antitrust

We represented a leading insurer in connection with a purported nationwide class action relating to dealings with brokers involving contingent commissions and other practices, and we counsel insurance companies on mergers and acquisitions and antitrust compliance. We defended one of several major insurance companies sued by a state insurance commissioner for alleged anticompetitive conduct in response to legislative rollbacks of automobile insurance rates, and we are counsel to insurance rating bureau organizations, and provide antitrust advice and counseling in connection with the activities of those organizations.

Intellectual Property Antitrust

Our antitrust lawyers work with our patent lawyers on intellectual property antitrust claims and defenses, providing the depth and breadth of experience needed for such complex matters. We also regularly counsel companies on antitrust compliance in connection with licensing, distribution and manufacturing in technology-driven industries. We further advise intellectual property owners and licensees on antitrust compliance in connection with the licensing and enforcement of intellectual property rights and patent settlements in ANDA litigation in conjunction with our ANDA litigation practice group.

Automotive Industry

We have represented truck dealers and automobile dealers in several litigation matters involving Sherman Act and Robinson-Patman Act claims. We have also represented dealers in a RICO class action and have represented a public transit bus manufacturer in connection with state dealer laws. We represent worldwide automobile manufacturers and other entities in compliance with UK and EU competition regulation and related matters. We have also represented auto-parts manufacturers and suppliers in connection with antitrust compliance and licensing issues.

Distribution and Franchise Matters

We represent manufacturers, distributors, franchise associations, cooperatives, franchisees and franchisors in structuring distribution systems and establishing contracts and franchises, and in connection with disputes arising out of their business relationships, including antitrust and unfair trade practices claims, claims for trademark infringement, breach of the franchise agreement and fraud, as well as actions for injunctive relief and damages in connection with the termination of distribution, franchise and other business relationships. By way of example, we have represented a manufacturer and supplier of office service products in various matters relating to its distribution and dealer and national account system and disputes relating to termination of certain dealer relationships, a distributor of salon-only brands of hair care products in defending group boycott and monopolization claims, and various manufacturers, distributors and dealers in termination disputes or disputes over pricing and terms of dealing. We counsel clients and litigate matters relating to distribution agreements, pricing and advertising and promotion issues, dual distribution and selective distribution.

Trade Associations

The firm represents trade associations and rating bureaus, and advises clients on antitrust risks relating to participation in trade associations and contacts with competitors in connection with such activities. Duane Morris' work for trade association clients includes counseling on corporate structure and governance of collective organizations, industry price or cost-related surveys and antitrust compliance in reporting formats of such information, membership issues, issues relating to ethical or professional standards potentially relating to pricing for services, apprising association constituents of important new legal developments, advice and counseling on antitrust compliance in board and committee meetings and other activities and addressing general issues of concern arising from potential violations of antitrust laws. We have represented clients in antitrust litigation matters in which association activity is the foundation for conspiracy allegations, and counseled individual clients and associations and collective organizations on avoidance of such claims.

Representative Matters

  • In re New Jersey Tax Sales Certificates Antitrust Litigation. Represent individuals and corporations in connection with tax sale bid rigging claims.
  • Counsel to major healthcare provider, Virtua Health, in ongoing parallel state business tort and federal court antitrust litigation with a rival healthcare provider involving allegations that defendants made improper patient referrals away from plaintiff.
  • Counsel to a real estate investor in a criminal bid-rigging investigation by the U.S. Department of Justice, Antitrust Division of the foreclosure auction markets.
  • In re Processed Egg Products Antitrust Litigation (E.D. Pa.) – Court-appointed special master to address certain e-discovery issues.
  • Represented pharmaceutical company as a plaintiff in a major antitrust class action against U.S. and a Japanese manufacturers of a key ingredient of all drugs in pill or capsule form who conspired to fix the price of the ingredient over a 10-year period and obtain monopoly profits. The case settled on terms the client found very favorable after defendants' motions for summary judgment had been defeated.
  • Counsel to executive in investigation by U.S. Department of Justice, Antitrust Division, regarding the packaged ice industry.
  • Counsel to employee of major airline in connection with U.S. Department of Justice, Antitrust Division, investigation of the air cargo industry.
  • Counsel to several executives from two separate international corporations in investigation by U.S. Department of Justice, Antitrust Division, and the parallel class action multi-district litigation regarding alleged global price-fixing in the dynamic random access memory (DRAM) market.
  • Represented the official sanctioning organizations for professional racquetball in an antitrust action involving its policy for designating its "official ball." The case was vigorously contested, even after the plaintiff filed a bankruptcy petition. We were successful in getting our client dismissed without having to pay anything in settlement.
  • Represented major regional bank in antitrust aspects of acquisition of bank with over $1 billion in deposits and with branches in several overlapping markets in which bank merger antitrust screens were exceeded.
  • In re: TFT-LCD (Flat Panel) Antitrust Litigation, No. M-07-1827-SI, MDL No. 1827 (N.D. Cal.), represented international company in investigation by U.S. Department of Justice an in class actions alleging price fixing in violation of Section 1 of the Sherman Act.
  • In re Employee Benefit Insurance Brokerage Antitrust Litigation, Master Docket No. 05-1079, MDL No. 1663 (D.N.J.), representing major insurance company in defense of antitrust, RICO and ERISA claims relating to brokerage compensation.
  • In Re: Hydrogen Peroxide Antitrust Litigation, C.A. No. 05-666, MDL No. 1682 (E.D. Pa.), representing major chemical company purchaser of hydrogen peroxide in individual action asserting price-fixing claims.
  • American Express Travel Related Services, Inc. v. Visa U.S.A., Inc., No. 04-CV-08967-BSJ-DFE (S.D.N.Y.), represented leading credit card issuer in defense of antitrust action seeking billions of dollars of damages in connection with Visa and Mastercard rules and policies regarding member issuance on competing networks that were enjoined in prior action brought by the Department of Justice, Antitrust Division.

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"In my discussions with Duane Morris leaders, they frequently speak about how diversity within their firm has enabled them to better serve their diverse clients. They understand that investing in diversity is a wise business decision that positions them for the marketplace of the future."

Don Liu
Senior VP, General Counsel & Corporate Secretary
Xerox Corporation

At Duane Morris, achieving diversity is paradoxical. By supporting and celebrating the differences of our attorneys - and the individual strengths that they bring - our firm culture expands, fostering creative solutions for our clients. But diversity at Duane Morris does not mean that we have a certain number of diverse attorneys; true diversity means that it is no longer noteworthy to see diverse lawyers leading our practice groups or managing client relationships. Ascending to positions of leadership and greater responsibility and providing the highest levels of client service is simply what is expected of all our lawyers. Diversity is another strong asset that adds to our collective abilities to meet the needs of our clients.

Our vision of diversity at Duane Morris is to realize an environment in which our lawyers' outstanding qualities are not just measured by ethnicity, race, gender and sexual orientation, but more importantly, that our lawyers are remarkable as excellent attorneys above all else. Only then can we celebrate our differences while focusing on the common pursuit of legal excellence which everyone shares at Duane Morris.

To reach this goal, Duane Morris understands that the familiar diversity strategies and policies that most law firms have are needed. Without demanding results from such policies, most law firms are bound to fail in even achieving numerical hiring and retention goals. Duane Morris has been proactive and ambitious in its efforts to improve diversity at the firm, and has set deadlines for reaching the milestones which mark our progress. To create a more diverse law firm, Duane Morris is:

  • Committed to strategically increasing our diversity levels, which is currently at 10 percent.
  • Bringing together our Diversity Committee and our Hiring and Retention Committee to raise diversity as an important factor in our hiring decisions.
  • Dedicated to improving retention by building upon our monitoring and mentoring program for all diverse associates.

Combining new initiatives with our longstanding diversity efforts, Duane Morris has seen increasingly positive results. In the Minority Law Journal's annual diversity survey of the nation's largest 260 firms, Duane Morris continued to improve its regional and national ranking, rising to number 136 of all firms surveyed. Our strides in Philadelphia are encouraging; in a city known for both the racial diversity of its population and the lack thereof in its law firms, Duane Morris is one of only two law firms to exceed the national average of minority partners at all law firms. Additionally, Duane Morris leads all national law firms based in Philadelphia in the number of Latino partners. Nearly 30 percent of all of our attorneys are women, and more than 20 percent of our partners are women.

In our approach to diversity, progress in racial, gender and cultural diversity cannot be measured in numbers alone. Duane Morris has focused our diversity initiatives on both increasing the number of diverse associates and addressing the challenges diverse attorneys face in building lasting careers and rising to senior and leadership positions. While several of our key practice groups are led by diverse partners and female partners, Duane Morris endeavors to create a culture which will foster a deep pool of such attorneys who can then develop into the firm's future leaders. Duane Morris understands that simply hiring diverse associates will not change the diversity of the firm; Duane Morris is working to mentor and retain diverse associates so that our progress in racial, gender and cultural diversity is also reflected at the highest levels of leadership within the firm.

Our progress on gender diversity has been profound. We have no glass ceilings: women hold positions of leadership at all levels of management at the firm. Women lead a number of our key practice groups, including our Energy, Immigration and International practices, and serve on the firm's Executive Committee. The success of our female attorneys at Duane Morris has not gone unnoticed. Barbara Adams was chair of the firm's Finance Practice until her appointment by Pennsylvania Governor Edward Rendell to serve as General Counsel of the Commonwealth. In 2004, our longtime General Counsel, Gene E.K. Pratter, was approved by the United States Senate and is now a judge for the U.S. District Court for the Eastern District of Pennsylvania.

Our efforts to improve diversity extend beyond our firm's walls. The chair of our Diversity Committee, Nolan N. Atkinson, Jr., recognized the lack of diversity in Philadelphia's legal community and formed the Philadelphia Diversity Law Group. Nolan now serves as the chair of the organization, a consortium of 25 law firms and corporations that commits to employing at least one diverse first-year law student each as a summer associate. From this program, law students of diverse backgrounds gain access to what was once an exclusive legal community, and now have the opportunity to learn and develop their legal careers with experience at Philadelphia's top law firms.

In addition to our involvement in the Philadelphia area, Duane Morris has increased our presence at national conferences and events focused on diversity. We sponsor the Hispanic National Bar Association and its job fair. Duane Morris is also a longtime supporter and sponsor of the Equality Forum, a national gay and lesbian rights organization. Duane Morris continues to sponsor the Minority Corporate Counsel Association, and is active in other associations of diverse attorneys including: the Asian American Bar Association of the Delaware Valley; the Charles Houston Bar Association; Cuban Bar Association; Korean American Lawyers Association; National American Indian Housing Counsel and the National Bar Association.

The challenge of improving gender, ethnic and cultural diversity at Duane Morris is an ongoing effort that has the support of the entire firm. Duane Morris has been at the vanguard in supporting gender diversity throughout the firm beginning a generation ago. Our diversity programs are leading to similar success in improving racial and national origin diversity at Duane Morris. But even as we share these examples of Duane Morris attorneys and our involvement in numerous legal events, associations and programs for diversity, our hope is that such examples will no longer be necessary to mention in the future. We hope that through our efforts, and the efforts of other law firms, these stories become so common that they are no longer the remarkable accomplishments they are today, but simply routine aspects of the legal world tomorrow.