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Unilateral Conduct

Unilateral Conduct

Shearman & Sterling’s antitrust team is highly experienced in advising clients how to navigate this complex area of antitrust law which has been in a state of flux for many years.

Clients with significant market positions call on us to devise market strategies that will allow them to achieve their commercial goals without running afoul of antitrust laws. Companies that are victims of abusive behavior count on us to generate effective enforcement activity by the antitrust agencies.

A company found to hold a dominant position under EU competition law runs the risk that it will be investigated for abusing that position. Should a finding of infringement be reached, the company could be subject to substantial fines and restraints on its competitive behavior.

Compared with EU abuse of dominance under Article 102, simply possessing market power or exercising that market power (e.g., to obtain higher prices) is not illegal in the US. A firm must have engaged in anticompetitive exclusionary acts to obtain or maintain its monopoly position. US courts generally have found that anticompetitive conduct is conduct that excludes competitors from the relevant market and harms the competitive process.

In the US, Shearman & Sterling's antitrust team has litigated, through jury trial, Section 2 cases in federal courts throughout the US with strong results for our clients. In addition to litigation, we provide regular counseling to major corporations on potential Section 2 issues arising out of product pricing and bundling, relationships with distributors and direct purchasers, contracting and marketing practices, and other strategic business issues.

In Europe, recent cases in which the team has defended clients against allegations of abuse of a dominant position include purported excessive royalty demands, anti-competitive tying and exclusionary rebates and bundled discounts.

Featured Matters

  • aaiPharma in three antitrust cases in the US alleging conspiracy to monopolize and monopolization of the omeprazole drug market. All cases were settled.
  • Covidien in a federal class action lawsuit alleging that Covidien had monopolized and engaged in anticompetitive exclusionary conduct in the market for medical sharps containers in the United States. The case settled on extremely favorable terms for our client.
  • Gogo, Inc. in a putative class action in the California federal court brought by consumers alleging the company entered exclusive contracts with major airlines that allowed it to sustain a monopoly and raise prices. The claim was dismissed without prejudice.
  • ICE Clear Europe in the context of the European Commission’s Credit Default Swaps—Clearing investigation into whether arrangements between ICE Clear Europe and various international banks foreclosed CDS clearing.
  • Nokia in the on-going European Commission investigation following a complaint by Google alleging collusion involving Mosaid, a non-practicing entity that acquired 2000 patents from Nokia in 2011.
  • Qualcomm in the ongoing European Commission investigation following yet another abuse of dominance complaint relating to the 3G mobile broadband technology. In a similar investigation, handled by the same team, the European Commission closed the formal antitrust proceedings in 2009, marking the first time a major US high tech firm succeeded in having a dominance case against it terminated.
  • Samsung in the ongoing European Commission’s investigation of whether its applications for injunctive relief regarding its Standards Essential Patents may be considered to be abusive.
  • Sony on the US and EU antitrust aspects of its participation in the Rockstar consortium (including Microsoft, Apple, RIM and Sony) that successfully acquired several thousand Nortel patents.
  • Syngenta in a lawsuit against Monsanto Company alleging Monsanto’s bundled discounts, sham patent litigation, and customer threats violated Section 2 of the Sherman Act. The case was settled.
  • Thomson Reuters’s BAR/BRI in consumer class actions alleging that BAR/BRI conspired with Kaplan, the nation’s leading LSAT preparation course provider, to stay out of each other’s markets, and engaged in exclusionary conduct.
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