Antitrust Tips

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Are temporary attorneys needed for electronic discovery?

Antitrust Lawsuit and Electronic Discovery

Antitrust lawsuits deal with complicated matters, usually with the alleged creation of a monopoly, either by a company that purposely hinders competition with excessively low pricing, unfair provision of product, services and promotions, or the creation of a monopoly by a merger or acquisition, to name a few.

Antitrust lawsuits may be filed in state court or federal court. Jurisdiction depends on the facts of each case, but generally, if the case is being filed under the Sherman Act, the Federal Trade Commission Act, or the Clayton Act, the case is filed in federal court.

Because of the complexity of antitrust litigation, attorneys often hire temporary attorneys to help review electronic documentation generated during a transaction (discovery). Once the lawsuit is filed and the defendant has been served and answers, the discovery process starts. If the parties to the lawsuit did not use electronic communications during the acquisition, merger, or other matter, the amount of documentation is generally reasonable. If the parties relied on email and faxing to review and send contracts back and forth, an antitrust litigator might choose to retain a temporary attorney to help review all electronic documentation relating to discovery in the case.

The electronic documentation is reviewed for content, to determine whether the content is privileged information. Privileged information is not discoverable.

What Laws Govern Antitrust Litigation?

What Laws Govern Antitrust Litigation?

Both state and federal laws are in place for antitrust matters. The laws are in place to prevent companies and individuals from creating monopolies. If a company or an individual creates a monopoly, the market might become stagnant, and that company can also charge more than a fair price for services and products.

The first antitrust law enacted was the Sherman Antitrust Act of 1890. The Sherman Antitrust Act, enacted by Congress, removes limits on competitive trade. This Act covers interstate business transactions.

The Federal Trade Commission Act also has antitrust laws. These laws deal with a number of antitrust matters including unfair methods of competition. Since it does not define unfair methods, this is left open to interpretation. This leaves openings for many antitrust lawsuits that may or may not work in the plaintiff's favor, depending on the circumstances of the lawsuit. The Federal Trade Commission enforces its antitrust laws and looks at each case on its own merits.

The Clayton Act is another antitrust law. The Clayton Act covers mergers and acquisitions, and disallows a merger or acquisition that, if formed, creates a monopoly. The Clayton Act, like the Federal Trade Commission antitrust law, is applied on a case-by-case basis.

What Are Antitrust Claims?

What Are Antitrust Claims?

Antitrust claims are often filed because the plaintiff determines a monopoly is involved in the selling of a product or service. There are many reasons that a plaintiff (usually a retailer or a wholesaler) might think he or she has an antitrust claim, including these few reasons:

  • You are being charged more for products than a competitor is being charged, and you get your products from the same company.
  • A manufacturer makes promotional programs available to competitors and not to your establishment.
  • A competitor has more than 50 percent of the market in your area, and is doing things (such as special promotions or unfairly lower prices) to injure your business by removing the competition.
  • A company, through acquisitions, created a monopoly that injures your business, or two companies work together to create a monopoly that injures your business. This can be done by the two companies by agreeing to significantly lower prices so that those two companies take all the business, leaving you with none, as you cannot lower your prices to match theirs, without taking a loss.

Are Legal Staffing Services an Important Part of Antitrust Cases?

Are Legal Staffing Services an Important Part of Antitrust Cases?

Antitrust cases are usually complex cases with an extraordinary amount of documents, especially electronic documents, such as emails and faxes. The many intricacies of antitrust litigation come into play because of the amount of documentation created between businesses. There are many contracts—contract between businesses, contract between the business and its employees, and other contracts that are sent between attorneys.

In an antitrust litigation lawsuit, all documents, except for those documents that are privileged information, must be provided to the opposing litigant. These documents include electronic documents, whether the documents are correspondence, contracts, or electronic court filings. If the attorneys and clients relied on email to forward documents back and forth for review and editing, there can be a substantial amount of emails to review for privileged information, before they are provided to the opposing litigant.

Legal staffing services provide temporary attorneys to review emails and other electronic documents for privileged information, freeing up the firm's attorneys for more pressing matters. The emails are also coded for relevancy and confidentiality.

Why Are Electronic Discovery Services Important in Antitrust Cases?

Why Are Electronic Discovery Services Important in Antitrust Cases?

With the advent of electronic communications, including email and faxing, electronic discovery services are an important part of antitrust cases. Memos, correspondence, pleadings, and contracts are sent back and forth via email, allowing firms to make client changes to documents much faster.

If a particular case goes to litigation, discovery must be provided to the plaintiff(s) and defendant(s). Part of that discovery includes email messages between the attorneys and messages between the attorneys and clients, but some emails may contain privileged information. Privileged information is not “discoverable,” and is not produced to opposing counsel during litigation.

There may be many emails that were saved over time. The emails and their attachments (if any) must be reviewed for content. Staffing companies provide temporary attorneys to review emails for confidential and privileged information. The documents are also coded for relevancy.

Are there any documents that cannot be submitted in the discovery process?

Antitrust Settlement

In some antitrust litigation, the defendant entity realizes it is in the wrong, or does not want to continue litigation (this can be for a number of reasons, only known to the defendant). For whatever reason, the antitrust litigation may result in a settlement, but the discovery process is usually completed prior to settlement.

The discovery process includes provision of all documents available to both sides, including any electronic discovery. Electronic discovery includes emails and other digital documents that are discoverable.

During the discovery process, all relevant documents must be provided to opposing counsel, with the exception of documentation that is considered privileged. Privileged documents are usually documentation between attorneys and their clients, but there are other documents that may be non-discoverable.

Temporary attorneys can be used to review emails and other digital documents for content to determine whether the documents contain information that falls under attorney-client protection or other confidentiality laws or rules, making the document non-discoverable.

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