International Antitrust Law & Policy: Fordham Corporate Law 2005 - Hardcover
International Antitrust Law & Policy: Fordham Corporate Law 2005 - PDF
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Chapter 9
OBSERVATIONS ON NEGOTIATING
GOVERNMENT ANTITRUST SETTLEMENTS
IN THE UNITED STATES
James R. Atwood†
“Millions for defense, not one cent for tribute!” is a battle cry that the
private bar loves to hear. Far more frequently, however, calmer heads
prevail, and settlement possibilities are seriously explored. This is
particularly so in government-initiated antitrust proceedings, where the
consequences of an adverse litigation decision are severe and where clients
often have an overriding institutional interest in good government relations.
This paper surveys the settlement process for U.S. government
antitrust proceedings with a focus on aspects of that process that may be of
particular interest in comparing the settlement process in the United States
with that in Europe under the new Article 9 commitment procedure in
Regulation 1/2003.1
I. THE INTERPLAY OF U.S. GOVERNMENT SETTLEMENTS AND
PRIVATE TREBLE DAMAGE LITIGATION
Settlement discussions in U.S. government antitrust proceedings are
powerfully influenced by the potential impact that those proceeding may
have on associated private treble damage suits. Indeed, with some
exceptions for hard-core cartel investigations,2 this will be the dominant
consideration in the minds of most investigatory targets. The impact on
private litigation may be a factor in European settlement discussions as
well, either because of the prospect of follow-on single damage actions in
the EU national courts or because the nature of the alleged conduct may
inspire spillover treble damage suits in the United States.3 Nonetheless,
the directness and enormity of the impact of a government investigation
About the Editor:
Barry Hawk is Director of the Fordham Corporate Law Institute and Partner with Skadden Arps (New York and Brussels). He is former Vice Chair of the ABA Antitrust Section and former Chair of the New York State Bar Association Antitrust Section, as well as Professor at Fordham Law School and Visiting Professor at Michigan Law School, Monash University Law School, New York University Law School and the University of Paris.
