Competition

Expert Analysis

• Antitrust Tools For Dealmakers Preparing For Better Times

  

  When the U.S. economy inevitably returns to health, a number of antitrust rules already on the books can facilitate rapid investment in distressed companies, minority interest acquisitions and other securities sales without government delay, say Harry Robins and David Brenneman at Morgan Lewis.

• How COVID-19 Might Uproot Centuries Of Litigation Traditions

  

  Litigation has historically been an in-person activity, but the COVID-19 crisis might bring a long-lasting shift toward adoption of technologies that allow discovery and other litigation activities to proceed in a manner that preserves social distancing, say Elisabeth Ross and Christopher Hennessy at Cozen O’Connor.

• Price-Gouging Or Normal Market Functioning Amid COVID-19?

  

  Economic analysis of supply chain interruptions, capacity constraints, increased supplier bargaining power, increased search costs, and costs for new entrants — which can drive price elevation in emergencies like COVID-19 — can help disentangle normal market functioning from price-gouging, say Mary Beth Savio and Timothy Snail at Charles River Associates.

• Consider Legal Ramifications Before Recording Video Calls

  

  Given the ease with which videoconference participants can unwittingly risk civil and criminal liability by unlawfully recording calls, attorneys should be mindful of — and clients may appreciate prospective advice on — state consent laws and the various meeting platforms' consent features, say Daniel Rozansky and Crystal Jonelis at Stubbs Alderton.

• Opinion

  Breaking Up Big Tech Is Not Necessary For Accountability

  

  Authorizing the Federal Trade Commission or a new digital authority to police dominant tech platforms pursuant to a new legal standard outside of antitrust can protect independent retailers, websites and app providers without the drastic measure of breaking up big tech, says Hal Singer of Econ One.

• A New Breed Of Antitrust Challenges To FDA's Orange Book

  

  ​​​​​​​Two recent federal antitrust rulings concerning Orange Book entries' improper overextension of branded drug exclusivity reflect the challenges courts face in resolving controversies the U.S. Food and Drug Administration has ducked, says Benjamin Greenblum at Williams & Connolly.

• 3 Tips For Deposing Difficult Witnesses Remotely

  

  Taking a deposition of an uncooperative witness is one task made immeasurably more difficult during the current pandemic, and certain deposition styles that may be extremely forceful in person may have limited effectiveness over videoconference, says Qian Julie Wang at Robins Kaplan.

• Defense Industry Lessons From UTC-Raytheon Deal Review

  

  The U.S. Department of Justice Antitrust Division’s recent challenge to the United Technologies-Raytheon merger is the first aerospace and defense industry review since draft vertical merger guidelines were released in January, and provides a look at how the guidelines' principles and theories may be applied, say Jon Dubrow and Anthony Ferrara at McDermott.  

• How Courts Are Shaping Disclosure Of 3rd-Party MDL Funding

  

  Despite the lack of regulations requiring the disclosure of litigation financing in the multidistrict litigation context, recent orders demonstrate a court’s ability to craft disclosure obligations to ensure counsel’s compliance with ethical duties, say Stephanie Spangler at Norris McLaughlin and Dai Wai Chin Feman at Parabellum Capital.

• Opinion

  Cos. Should Not Illegally Profit From Our Pandemic Pain

  

  Some opportunistic companies have started to take advantage of consumers and workers during the COVID-19 crisis, so lawyers must remain vigilant — and mindful of state consumer protection and labor statutes — to guard against unscrupulous profiteering, says attorney Daniel Karon.

• Opinion

  New Jersey's Plan For 2020 Law Grads Is Brilliant

  

  The New Jersey Supreme Court's much-needed order allowing this year's law school graduates to practice prior to being admitted should be adopted in New York — and developed further even after the pandemic ceases, says attorney Dmitriy Shakhnevich.

• New Insights On Resale Price Maintenance In China

  

  The most recent resale price maintenance violation cases in China indicate that companies under investigation should take a more proactive approach and organize detailed rebuttal evidence materials to fully evaluate competitive impact, say attorneys at Tian Yuan Law Firm.

• Managing E-Discovery Providers In Times Of Crisis

  

  Retention of e-discovery providers usually involves considerable time and several layers of approval, but practicalities during the current emergency have proven that law firms must have the acuity to make smart but quick game-time decisions, says Shannon Capone Kirk at Ropes & Gray.

• Witness Preparation Tips For Your Next Video Deposition

  

  Just like in a normal deposition, remind your witness that testimony provided via videoconference may be used in a courtroom, so they must be mindful of everything they say or don’t say, the space they are in, and their attire, say Adam Bloomberg and Merrie Jo Pitera at Litigation Insights.

• How 3rd Parties Can Best Limit Fraud Liability Amid COVID-19

  

  COVID-19 enforcement activity raises the specter of liability for innocent third parties, but companies can take steps to reduce the risk of unwittingly facilitating fraud or price-gouging and demonstrate good-faith compliance to regulators, say Robyn Crowther and Ashwin Ram at Steptoe & Johnson.