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Fundamentals of Antitrust and Competition Law: What you need to know to identify issues, mitigate risk and maximize flexibility

By:
Stephen J. Cipolla, Founder of Stephen Cipolla Legal Strategies
Coming soon.. Please contact customer care for new schedule

Course Description:

This two-day workshop will enable you to understand the objectives of the antitrust law and social and economic policies underlying them. You will learn the types of practices that are prohibited, those that can be defended, and those that draw the most scrutiny. You will learn about the criminal and civil penalties meted out by government enforcers, and the private civil litigation process. You will become more sensitized to the types of practices that draw scrutiny from enforcers and ways to reduce the likelihood of investigation and private damages actions.



Learning Objectives:

Upon completing this course participants should:

  • Understand the kinds of business activity the antitrust laws absolutely prohibit, the kinds it permits if properly justified, and the kinds it does not apply to at all.
  • Learn the broad goals and objectives of the antitrust laws,
  • Possess a sensitivity to the specific business practices that can be considered anticompetitive,
  • Be able to communicate to others the reasons a particular practice could raise risk and should be brought to the attention of counsel or upper management,
  • Have a better ability to evaluate whether your company is the victim of an antitrust violation or unfair business practice,
  • Learn specific strategies for reducing the risks of communications with competitors,
  • Understand and reduce the risks of joining trade and professional organizations, of conducting surveys and participating in benchmarking studies,
  • Learn some tips on gathering competitive intelligence properly,
  • Understand the significance to your business of antitrust decisions and enforcement actions reported in the press.
  • Guidelines for avoiding antitrust risks when discussing your business.


Who will Benefit:

Antitrust Fundamentals will benefit a wide range of people in business organizations across all industries. Anyone who is involved in competition at any level of their company needs to have a basic understanding of these laws, and this course will provide it. More specifically the following personnel will benefit from the course:

  • Attorneys without any background in the subject, and those seeking a basic refresher
  • Business Development professionals
  • Pricing professionals
  • Compliance professionals
  • Marketing professionals
  • Government Relations professionals
  • Mergers and Acquisitions professionals
  • R&D professionals
  • Members of Joint Ventures
  • Competitive Intelligence professionals
  • Executives in concentrated industries
  • Executives whose companies have high market shares
  • Executives who face competition from larger rivals in the marketplace


Topic Background:

Over the course of the past two decades, and especially in the past five years, antitrust authorities in the US and overseas have dramatically increased enforcement activity targeting business practices that they believe to be unfair and injurious to the competitive process.

Any business operating in the US is potentially exposed to the federal and state antitrust and unfair competition laws. Unlike most of the competition law regimes outside the US, businesses here also must be ready to defend their practices in court when suits are brought by competitors or customers alleging violations. These lawsuits can carry heavy damages judgments and are among the most prolonged, complex, distracting, and expensive cases to pursue or defend in US courts. In addition, because the antitrust laws are felony statutes, it is not just about money. Increasingly, the US Department of Justice (DOJ) is seeking and obtaining jail terms for executives of companies involved in antitrust violations. A seven-year long antitrust case is the norm, not the exception. The DOJ's investigations of many high profile companies have lasted even longer than that.





Course Outline:

Day One (8:30 AM – 4:45 PM) Day Two (8:30 AM – 4:00 PM)

Registration Process: 8:30 AM – 9:00 AM

Session Start Time: 9:00 AM

  1. Antitrust Law and Policy – A general introduction
    1. The genesis of US antitrust law
    2. The specific statutes and what Congress intended to accomplish in enacting them
  2. The Concept of “Competition” as used in contemporary US antitrust law
    1. The influence of economic theory on the courts
    2. The importance of price evidence in deciding whether a market is “competitive”
    3. Distinguishing between damage to a competitor and injury to the competitive process.
  3. The Major Statutes – Sherman Act Section 2 -- Monopolization
    1. What is prohibited?
    2. Pricing – the “central nervous system” of competitive markets
    3. Distinguishing competitive conduct from anti-competitive conduct
    4. Civil and Criminal penalties in government actions and civil remedies in private litigation.
  4. The Major Statutes – Sherman Act Section 1 – Conspiracy
    1. What is a “conspiracy in restraint of trade”?
    2. What activities can give rise to the suspicion of the existence of a conspiracy?
    3. The Per Se Offenses: the hard-core conspiracies that cannot be defended in court.
    4. Civil and Criminal penalties in government actions and civil remedies in private litigation.

  1. The Major Statutes: The Clayton Act, Section 7, – Mergers and Acquisitions
    1. All Business combinations are subject to the Clayton Act, regardless of size
      1. What is a “combination?”
    2. Who enforces Section 7?
    3. Why does the government challenge a merger, acquisition or joint venture?
    4. How can a business combination be defended?
    5. What are the consequences of a government court challenge?
  2. The Major Statutes – The Robinson Patman Act – Price Discrimination
    1. What is “price discrimination” under the RPA?
    2. To what prices does the law NOT apply?
    3. What’s different about this “antitrust” law?
    4. What is the level of government enforcement?
    5. What is the level of civil damages litigation?
  3. State Antitrust Law – What you need to know
    1. Can the states enforce their own antitrust laws, even if they are different from the federal statutes?
    2. Can the states choose to ignore or even contradict the antitrust decisions of the US Supreme Court?
    3. Can a company be investigated by the state Attorney General and the Federal enforcement authority simultaneously for the identical conduct?
    4. Can a “defendant” be sued by state and federal authorities simultaneously in different courts?
    5. Can a “defendant” be sued in state and federal court simultaneously by private plaintiffs seeking money damages and other remedies for the identical conduct?
  4. International Antitrust Enforcement
    1. Trends in enforcement under foreign antitrust / competition laws.
      1. The EU
      2. Japan
      3. Russia
      4. China
      5. India
    2. Increased inter-agency cooperation raises risk for all US companies doing business overseas
      1. US DOJ has entered cooperative arrangements with many other enforcement agencies; multi-lateral sharing of documents and evidence.
    3. Foreign antitrust authorities are imposing ever increasing fines and penalties for violations.
    4. Many countries are opening up their courts to private civil damage actions by competitors and consumers, especially in the EU nations.

QUESTIONS






Meet Your Instructor

Stephen J. Cipolla
Founder of Stephen Cipolla Legal Strategies

Stephen J. Cipolla is the founder of Stephen Cipolla Legal Strategies; a Philadelphia area law firm dedicated to providing cost-effective, practical legal guidance to entrepreneurs, start-ups, and established businesses of all sizes. He counsels clients on all aspects of business law, including contracts, antitrust, unfair business practices, negotiation strategies, marketing/pricing strategy, dispute resolution, risk management, compliance programs. He considers the role of counsel is to provide value through legal advice that can be integrated into the client's business strategy. In addition to his legal practice, Mr. Cipolla is a trained mediator who focuses his practice on helping parties resolve business and commercial disputes without resort to litigation or arbitration

Cipolla was inside antitrust counsel at Merck & Co., Inc. for over 20 years. He worked both with teams and independently on an array of company matters including mergers, joint ventures, legal compliance, litigation management, contracts, antitrust counseling, government investigations, and inquiries, pricing, sales and marketing practices, fraud and abuse compliance, privacy, and promotional practices. During his time at Merck, he received many awards in recognition of his contributions to the Company.

Mr. Cipolla is a magna cum laude graduate of Dickinson School of Law, and was graduated fifth in his class. He was an Editor of the Law Review (1983-1985) and was accepted into the Woolsack Honor Society.





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