Government Civil and Criminal Enforcement
In addition to our mergers and litigation practices, Wilson Sonsini Goodrich & Rosati frequently represents clients before the FTC and DOJ in connection with civil non-merger investigations. Our attorneys often are called upon to represent companies' interests before the antitrust agencies, either in connection with an investigation into their business practices or in helping the agencies investigate the conduct of others.
On occasion, the DOJ and FTC investigate the business dealings of our clients. Competitors, customers, suppliers, and distributors frequently bring their business concerns to the antitrust agencies, which in turn can result in substantial investigations into the legality of the challenged business conduct. It is important for our clients to secure representation to defend themselves not only before the antitrust agencies, but also in the all-too-often private cases that follow government enforcement actions.
Our attorneys, with their extensive experience and deep understanding of the agency process, represent our clients in these investigations. In addition, we assist clients who are the target of unfair business practices of competitors, suppliers, distributors, or other third parties who hamper their ability to compete. Bringing such behavior to the attention of the antitrust agencies is often an alternative to litigation, and can provide a swift and definitive resolution to such practices.
Our antitrust team has been involved in several civil non-merger investigations, including:
- Represent Google in connection with the FTC's investigation into a number of the company's business practices
- Represent Google in connection with the DOJ's investigation into the proposed settlement of litigation concerning Google Book Search
- Represented a private equity firm in connection with a DOJ investigation into claims that the company was involved in illegal club bidding with other private equity firms
- Represented a technology company in connection with a DOJ investigation into an alleged agreement not to solicit employees from other technology companies in Silicon Valley
- USA v. Visa: Represented American Express, the primary third party in the government's case against Visa and MasterCard for price fixing, market allocation, and monopolization in violation of the Sherman Act. The government won the case, and the victory was affirmed by the Second Circuit.
- FTC v. VISX: Successfully defended VISX in this precedent-setting case by the FTC alleging that VISX and its competitor unlawfully pooled their patents for purposes of monopolizing the market for laser eye-correction techniques, and that VISX obtained its key patent through inequitable conduct before the Patent and Trademark Office. The patent misuse claim was tried to an administrative law judge at the FTC, who ruled in VISX's favor and dismissed the FTC staff's claim.
- USA v. Microsoft: Represented Netscape, one of the primary third parties in the government's investigation of Microsoft for unlawful monopolization in violation of the Sherman Act. Drafted white paper that assisted the government in its analysis of conduct subsequently challenged by the government in its successful case against Microsoft.
- Represented Internet joint venture among competitors whose services were distributed through multiple channels, including their own separate Internet sites, in a civil investigation by the Antitrust Division regarding certain "most favored nation" and exclusivity provisions. The investigation was closed without action by the agency.
Antitrust criminal investigations have gained momentum worldwide and, as a result, companies that interact with their counterparts on market-sensitive matters need experienced counsel who can steer them clear of potential criminal sanctions. In the United States, cartel sanctions are on the rise, and the DOJ has imposed substantial fines and prison sentences against alleged conspirators, including those located abroad.
Our antitrust team has successfully represented numerous companies and individuals in cartel investigations and grand jury proceedings across a range of industries. Team members have served as U.S. attorneys and participated on the Antitrust Modernization Commission, which was responsible for overseeing and recommending changes to the criminal antitrust laws and procedures. We have represented companies in two of the most prominent recent criminal antitrust cases, against companies in the DRAM industry and firms participating in the E-Rate program.
No industrial sector is immune from antitrust investigation for suspected cartel violations. The technology, biotechnology, and financial services industries recently have been targeted by U.S. authorities. The risk of detection and punishment has dramatically increased with the DOJ's implementation of a first-in leniency program that substantially reduces or eliminates exposure for the first to expose their co-conspirators, making decisions regarding potential criminal and civil exposure critical, and demanding timely consideration by executives and the board of directors.
Of course, the best offense is a good defense, and we partner with our clients to ensure that they take steps to avoid the prospect of a damaging criminal investigation. We work with our clients to set up compliance programs tailored to their business needs and objectives.
We have represented both targets and third parties in enforcement actions and investigations brought by the DOJ and FTC:
- Represented Samsung in connection with the DOJ's recent and extensive criminal investigation into high-tech markets
- Represented a SRAM supplier in connection with litigation derived from the DOJ's investigation into SRAM price-fixing allegations
- Represented a client in connection with the DOJ's E-Rate investigation relating to bid rigging in the provision of computer supplies to government-funded education programs