ANTITRUST

Civil Enforcement

Wilson Sonsini Goodrich & Rosati has an unmatched record representing clients before the DOJ, FTC, and foreign jurisdictions such as the European Commission in connection with the most high-profile civil non-merger investigations. Due to our extraordinary track record, we are consistently called upon to represent all manner of companies either in connection with an antitrust agency's investigation into the company's business practices or in helping an agency investigate the conduct of others. WSGR is widely regarded as the leading firm in the United States for single-firm conduct issues, with our successful defense against the FTC's search investigation of Google serving as a prime example of our work in this area. Further, we are frequently retained to represent clients in civil conduct investigations in both the United States and abroad.

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 bring extensive experience and a deep understanding of the agency process to their representation of 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.

As referenced above, we represented Google in connection with the FTC's 19-month search investigation of the company. In January 2013, the FTC announced that it had closed its investigation, with the five commissioners unanimously voting that Google's handling of its search results had not violated U.S. antitrust laws on any grounds. The FTC said it had found that Google's algorithm changes were designed to improve its search results for the benefit of consumers and that "any negative impact on actual or perceived competitors was incidental to that purpose." WSGR won Global Competition Review's 2013 "Matter of the Year" award for its representation of Google in the matter.

Our antitrust team has been involved in several of the most significant civil non-merger investigations, each time securing a successful result for the client, including:

  • Represented Google in connection with the FTC's investigation into a number of the company's business practices and provide continued representation in a number of jurisdictions around the world
  • Represented a 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 pharmaceutical company in a pay-for-delay FTC investigation regarding a pharmaceutical patent settlement between a brand firm and several generics. This matter is still ongoing before the FTC only (no other government entities).
  • Represented an online broker in connection with a multiple-state investigation into claims that the company was involved in an illegal group boycott
  • Representing a company in connection with the DOJ's review (and potential modification) of the ASCAP and BMI decrees
  • Represented a leading social media company in connection with allegations that its conduct violated Section 5 of the FTC Act
  • Represented a company in an FTC investigation into the licensing of standard essential patents
  • Represented a media company in connection with an FTC investigation into a number of the company's business practices
  • 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
  • Represented a technology company in connection with a non-public investigation of its conduct with respect to interoperability among its competitors
  • 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: 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 an 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.
  • Represented a technology company in connection with a non-public FTC investigation into an alleged monopolization claim based on the company's proprietary file format
  • Represented a large management company in a civil investigation by the FTC regarding its business practices
  • Represented a company in an abuse of dominance investigation before the NDRC
  • Represented a multinational company in responding to the FTC's compulsory study of PAEs
  • Represented a U.S. equipment manufacturer and licensing entity in an abuse of dominance investigation by the NDRC regarding its licensing practices