Practice

Antitrust

Skilled counsel for all of your antitrust issues

We have a long history of minimizing antitrust liability and effectively engaging with antitrust enforcers on behalf of our clients – ranging in size from emerging growth companies, to publicly-traded, global corporations.  

Clients turn to Foley Hoag for the full-range of antitrust support from HSR premerger clearance through complex litigation. We frequently represent clients before the FTC, the Antitrust Division of the Department of Justice (DOJ), State Attorneys General (AGs) and various foreign antitrust enforcement agencies.

Areas of Focus


Clients turn to Foley Hoag for the full-range of antitrust support from HSR premerger clearance through complex litigation. 


MERGERS, JOINT VENTURES AND STRATEGIC ALLIANCES CLEARANCE. We can help you advance your business goals without running afoul of federal and state antitrust laws. Our team includes former senior lawyers from state AG offices, including one former AG, as well as attorneys who worked at the FTC, which provides us with unique informed perspective. 

LITIGATION. Because of our years of experience as successful litigators, we can identify and defend the legitimate business reasons motivating conduct that is challenged in litigation and convince courts and governmental agencies to dismiss claims. 

STRATEGIC COUNSELING. We have a robust counseling practice and work to help clients anticipate and avoid antitrust problems. Our team is adept at issue spotting with regards to potential antitrust risks:
  • Pricing decisions
  • Meetings and other exchanges of information with competitors
  • Trade association activity 
  • Refusals to deal
  • Exclusive dealing and tying restrictions
  • Interlocking Directorates
  • Managing supplier and customer relations
  • Distribution and franchise issues
  • Restrictive licensing and other restrictions related to intellectual property
  • Dealer terminations
  • Standard setting, both public and private

Experience

LIFE SCIENCES

  • A brand name pharmaceutical manufacturer in patent and antitrust litigation against a generic drug manufacturer
  • Have filed multiple Hart-Scott-Rodino (HSR) pre-merger notification filings for clients involved in life sciences and digital therapeutics, including for GreenLight Biosciences, Inc.’s $1.5 billion business combination with Environmental Impact Acquisition Corp., a publicly traded special purpose acquisition company
  • A leading nonprofit regarding the distribution of patented medical treatments to the developing world for humanitarian purposes
  • Lead counsel to a human genomics company in an FTC investigation regarding consumer protection and privacy issues
  • A life sciences company that was considering starting a new line business with a unique structure regarding the potential antitrust risks and prepared strategy for responding to potential antitrust investigations
  • Pre-merger antitrust analysis for potential transaction involving generic pharmaceutical manufacturers and designed divestiture plan to reduce potential antitrust concerns
  • As a former staff attorney at the FTC, one Foley Hoag team member led a challenge to a hospital’s proposed acquisition of a doctor group


TECHNOLOGY

  • Pointillist, a developer of a customer journey analytics software, with regards to its HSR filing and antitrust guidance in its sale to Genesys Cloud Services 
  • Several software designers on exclusive dealing, loyalty discounts and product bundling strategies


CANNABIS

  • Prepared HSR filing and provided antitrust guidance to Cultivate Holdings in its sale to Cresco Labs (CSE:CL) (OTCQX:CRLBF)
  • Prepared HSR filing and provided antitrust guidance to global cannabis operator Columbia Care Inc. (NEO: CCHW) (CSE: CCHW) (OTCQX: CCHWF) (FSE: 3LP) in its sale to Cresco Labs (CSE:CL) (OTCQX:CRLBF)
  • Prepared HSR filing and provided antitrust guidance to New England Treatment Access, LLC (NETA), a leading Massachusetts-based cannabis company, in its sale to Surterra Wellness


MANUFACTURING

  • The manufacturer of destructive testing equipment in an antitrust conspiracy action arising out of standard setting activity before ASTM International, formerly known as the American Society for Testing and Materials
  • New-Indy Containerboard, a joint-venture formed by the Kraft Group and Schwarz Partners, LP, in its acquisition of Shoreline Container and the related HSR filing and antitrust guidance.
  • A major automobile manufacturer uses our firm to conduct antitrust reviews of dealer and vendor agreementsA major automobile OEM in ongoing antitrust matters involving dealer relations, joint ventures, pricing strategies and advertising issues.
  • Successfully represented a specialty paper manufacturer in a federal monopolization claim against a supplier that dramatically raised prices with less than one day’s notice.
  • A national equipment manufacturer in antitrust litigation brought by a distributor challenging its termination and a manufacturer’s internet sales restrictions


CONSUMER & RETAIL

  • Defended a national specialty retailer in an enforcement action initiated by the Massachusetts Attorney General regarding the retailer’s discounting claims and compliance with consumer protection laws
  • A major retail food chain in litigation brought by a competitor, which alleged bidding irregularities and fraud in connection with the rights to develop highway rest areas
  • Represented major online retailer in responding to third-party subpoena from the FTC


ENERGY

  • One of the oil company defendants in the Apex v. DiMauro litigation, a case involving. The case involved  allegations of an antitrust and commodities fraud conspiracy among several heating oil companies that had traded contracts on the New York Mercantile Exchange.


VARIOUS

  • Obtained an immediate dismissal of antitrust and RICO claims filed against a professional service firm drawn into a patent dispute between parties for whom it had allegedly provided patent agent services, in action pending in federal court in the Northern District of Illinois
  • Numerous trade associations, buying cooperatives, sales and marketing joint ventures and corporate social responsibility consortia on standard setting, advocacy, lobbying and other competitor collaboration activities
  • A shopping mall developer in an antitrust case arising out of contentious zoning litigation among competing developers, and obtained a motion to dismiss most of the claims in the first case in New Hampshire state court to apply the Noerr-Pennington Doctrine
  • Various companies in connection with several different FTC investigations in which the clients have an interest, including producing documents, offering testimony and submitting white papers
  • Prepared HSR filing and provided antitrust guidance to Watterson Brands, a leading national facility services company, in its sale to Highview Capital