Whether a firm’s unilateral conduct should be considered to breach antitrust law raises complex legal and economic issues that often require sophisticated analysis. The complexity of such analysis means that these cases are often the source of protracted investigations and analysis by regulators and courts, who often find themselves policing a fine line between what is procompetitive and what is anticompetitive conduct. These are high-stakes issues; firms found to have engaged in illegal anticompetitive conduct are often faced with large fines and restrictions on their commercial freedom.

In many jurisdictions, regulatory agencies and courts have also been carrying out wider reviews of sectors to assess not only if antitrust rules are being broken, but also if competition is working well in the interests of consumers. Recently, this has led to proposals for the largest tech companies to be subject to some form of ex ante regulation and/or higher levels of antitrust scrutiny over their conduct.

These investigations turn on the analysis of the economic effects of the conduct. Economic theory is clear that the economic effects of a specific conduct will depend on the specific facts of the market in question and the assessment therefore requires in-depth economic and empirical analysis. Similarly, the potential for intervention to remedy identified market failures also needs to be grounded in a thorough analysis of the market in question.

We have advised on the full range of market-power abuse matters, including tying, bundling, loyalty rebates and exclusive dealing, refusal to supply, raising rivals’ costs, predation, price discrimination, excessive pricing, and margin squeeze. Many cases have required analysis of how intellectual property rights influence alleged anticompetitive behavior, particularly in technology and pharmaceutical sectors. We often work closely with forensic accounting experts on detailed analysis of costs required for effective application of relevant price-cost tests.

Global Senior Team