DealLawyers.com Blog

This Orrick blog is the first in a series addressing antitrust issues in joint ventures.  Since joint ventures frequently involve collaborations between competitors or potential competitors, antitrust concerns can be significant. Here’s an excerpt outlining the major antitrust questions that need to be addressed in the joint venture context:

– Does the JV constitute a “naked” agreement among competitors which is per se unlawful, does it not present an antitrust issue because there is only a single, integrated entity performing the JV functions, or does it involve restraints within the scope of a legitimate collaboration that are virtually per se lawful?

– Does the JV impose so-called ancillary restraints on the venture itself or its members, and if so, what standard of review applies to such restraints?

– Assuming the JV is properly structured to avoid an unlawful conspiracy charge, is it “too big” to be acceptable? What guidance applies to the size or market footprint of a JV?

– Will operation of the JV involve sharing of information between or among competitors, and if so, what practical steps should be taken to manage and limit information sharing between and among the JV and JV members?

Subsequent blogs have addressed structural considerations and ancillary restraints.

– John Jenkins