LEGAL INFORMATION NOTICE: This checklist provides general educational information only. It is not legal advice, does not create an attorney-client relationship, and does not determine whether particular conduct violates antitrust law. Antitrust analysis is highly fact-specific and may involve federal and state law. Consult qualified antitrust counsel regarding your circumstances.

“Two companies can cooperate to become more efficient—or cross a legal line by coordinating competition.”

The FTC identifies practices such as price fixing, bid rigging, and market division as particularly serious antitrust concerns, while other competitor collaborations require fact-specific analysis of their purpose and effects.

1. Antitrust law is highly fact-specific.
2. The same business arrangement can have different legal implications depending on its structure and effects.
3. Competitors do not automatically have unrestricted freedom to collaborate.
4. Price discussions between competitors can create serious risks.
5. Market-allocation arrangements can create serious risks.
6. Bid-rigging arrangements can create serious risks.
7. Trade-association activities require appropriate safeguards.
8. Joint ventures can raise competition questions.
9. Information exchanges can create risk depending on the circumstances.
10. Exclusive arrangements may require analysis.
11. Tying arrangements may require analysis.
12. Distribution agreements can create competition issues.
13. Licensing arrangements can raise antitrust considerations.
14. Labor-related competitor coordination can create issues.
15. Market definition can be critical.
16. Market share alone does not answer every antitrust question.
17. Business intent can matter.
18. Competitive effects can matter.
19. Procompetitive justifications can matter.
20. State antitrust laws can apply alongside federal law.
21. Private parties can bring certain antitrust claims.
22. Government investigations can become expensive.
23. Document preservation can become critical.
24. Casual emails and messages can become evidence of intent.
25. The key question is: “What does this arrangement do to competition, and can we demonstrate a legitimate procompetitive rationale?”

The FTC explains that federal antitrust law includes the Sherman Act, FTC Act, and Clayton Act, and that states also have antitrust laws.

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C. PREMIUM BUYER CHECKLIST

1. ARRANGEMENT

☐ Competitors identified
☐ Customers identified
☐ Suppliers identified
☐ Agreement structure
☐ Written agreement
☐ Informal communications
☐ Industry association involvement

2. COMPETITIVE EFFECTS

☐ Prices
☐ Output
☐ Customers
☐ Geographic markets
☐ Entry barriers
☐ Product choices
☐ Innovation
☐ Service levels

3. COMMUNICATIONS

☐ Emails
☐ Messages
☐ Meeting notes
☐ Presentations
☐ Internal memoranda
☐ Trade-association records

4. COUNSEL

☐ Antitrust specialization
☐ Relevant industry experience
☐ Transaction experience where relevant
☐ Litigation experience where relevant
☐ Government-investigation experience
☐ Fee structure

5. RISK ANALYSIS

Ask:

What is the business purpose?

What competitive benefit is expected?

What competitive harm could occur?

What evidence supports the procompetitive rationale?

6. RED FLAGS

☐ Competitors discussing future prices
☐ Customer allocation
☐ Geographic allocation
☐ Bid coordination
☐ Instructions to conceal communications
☐ “Everyone in the industry does this” justification
☐ No documented business rationale

FINAL QUESTION

If a regulator read every email about this arrangement, could we clearly explain why it exists and how it benefits competition or consumers?