How to Hire an Antitrust Attorney
1. Confirm deep, sector‑specific antitrust experience and enforcement knowledge
Ask for concrete examples of cases the attorney handled in your industry (horizontal price-fixing, vertical restraints, monopolization, merger clearance/HHI analysis, exclusive dealing, or anticompetitive bundling). Request pleadings, briefs, or redacted merger filings showing the economic and legal theory they used (market definition, market shares, barriers to entry, foreclosure analysis). Verify experience with both enforcement tracks: civil private damages suits (class actions and treble damages claims) and government investigations by DOJ Antitrust Division or FTC, including civil investigative demands, grand jury subpoenas, and consent decrees. For mergers, confirm they’ve prepared Hart‑Scott‑Rodino filings and negotiated remedies with agencies (divestitures, behavioral remedies, hold-separate orders). Make sure they know the key economic tools and authorities used in modern antitrust work, ability to work with economists on market definition, merger simulation, SSNIP tests, and unilateral vs. coordinated effects, and are current on seminal decisions and agency guidance that shape enforcement priorities.
2. Vet their litigation and economic expert network, and test their strategy for discovery and remedies
Antitrust cases turn on complex factual and economic proof. Ask who in their network they use for econometric analysis, damages modeling, and market‑structure experts, and request examples where those experts materially moved a case (e.g., excluded a plaintiffs’ regression, narrowed damages scope, or reshaped remedy negotiations). Review sample discovery plans and protective orders they’ve negotiated in high-volume document productions and complex e-discovery (search terms, sampling, TAR/AI workflows, phased discovery to limit costs). Probe their strategy for critical discovery tools, securing transactional data, depositions of key economic witnesses, and pre‑clearance document preservation in merger cases. Also evaluate their approach to remedies: do they push for structural remedies (divestiture) in merger cases, behavioral remedies with monitoring trustees, or seek conduct remedies and injunctive relief in monopolization matters? Confirm their track record on summary judgment, Daubert challenges to expert testimony, and class certification strategy where applicable.
3. Require transparent fees, phased staffing plans, and enforcement/appeal readiness with international reach if needed
Antitrust matters are resource‑intensive. Get a written engagement that breaks costs into phases (investigation/response, discovery and fact development, expert modeling, motion practice, trial, and appeal) with staffing levels and seniority for each phase (partner, senior associate, junior associates, e-discovery team). Negotiate fee structures appropriate to the matter: fixed fees for discrete tasks (CCI/HSR filing preparation), capped budgets for discovery, blended rates for staff, or reserve contingency options for damages claims. Clarify responsibility for large third-party costs (economists, data hosting, expert deposit accounts) and require pre-approval thresholds. If your matter crosses borders, confirm experience coordinating multiple competition authorities (DOJ/FTC, EU Commission, CMA, China SAMR, others), and plan for international evidence gathering and enforcement (mutual legal assistance, simultaneous leniency applications, or coordinating parallel remedies). Finally, insist on a written litigation/enforcement playbook showing anticipated timelines, likely defenses (state action, rule of reason vs. per se, efficiencies defense), metrics for settlement vs. trial decisions, and an appeal strategy, these preparations reduce surprise costs and position you for effective outcomes.
