Antitrust Issues in Retail Law

(95 Ratings)

Produced on: May 13, 2015

Course Format On Demand Audio

Taught by

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Course Description

Time 90 minutes
Difficulty Intermediate

Antitrust issues in retail have returned to prominence as long-dormant antitrust theories have come back to life and the appellate courts have become increasingly sympathetic to the interests of smaller retailers and suppliers. This course examines major areas of activity in antitrust law as it pertains to retail. Your instructor for this course is August Horvath, a partner at Kelley Drye & Warren in New York with over 18 years of experience in counseling and litigation on retail-related antitrust issues. First, Mr. Horvath reviews developments in the areas of resale price maintenance, or so-called “vertical price fixing,” in which a supplier agrees with a reseller on the price the reseller will charge to its own customers. Mr. Horvath then discusses “unilateral pricing policies” or “Colgate policies” that are often adopted as a safer alternative to resale price maintenance. Also covered is  the related topic of minimum advertising price (MAP) policies, in which the supplier merely limits the price at which a reseller advertises its product rather than the price at which it sells. 

 

Learning objectives: 

I.    Understand the evolving federal and state law of resale price maintenance. 

II.   Know the good and the bad reasons to undertake a resale price maintenance or a minimum advertised price policy. 

III.  Learn strategies to cope with the demands and expectations of powerful vendors or customers while complying with the antitrust laws. 

 

Faculty

August Horvath

Foley Hoag LLP

August Horvath, a partner in Foley Hoag's Advertising & Marketing practice, is a noted advertising and antitrust attorney. He counsels clients on how to substantiate and defend marketing claims they wish to make for their products and services, helps them challenge false and disparaging advertising by their competitors, and assists them in managing relationships with competitors, customers and suppliers without running afoul of antitrust laws.

August provides representation in private false advertising and deceptive practices litigation before the Federal Trade Commission (FTC), state Attorneys General and the National Advertising Division (NAD) of the Council of Better Business Bureaus, and litigates in courts across the country. He has helped many companies in fields such as pharmaceuticals, retailing, sporting and other consumer goods, and online Internet services reach their marketing, distribution and competitive goals while overcoming complex challenges of advertising law and antitrust barriers.

August’s antitrust experience includes litigating both civil and criminal cases before the Department of Justice (DOJ) Antitrust Division; FTC investigations and litigation related to conduct and mergers and acquisitions; and private litigation, including class actions with millions of class members. He also counsels clients in establishing marketing programs and distribution arrangements that comply with advertising and antitrust laws and regulations from the outset of their marketing plan development. August’s Ph.D. and hands-on experience in survey research and statistical analysis give him exceptional insight into developing substantiation protocols, designing and assessing research into the implied meaning of advertising claims, and working with and against expert witnesses.

August has been listed among premier attorneys in the U.S. Legal 500 and New York Super Lawyers. A fellow of the American Bar Foundation, he serves as co-chair of the American Bar Association Section of Antitrust Law, Agriculture and Food Committee.

















Steven L. Humphreys

Kelley Drye & Warren LLP

Steve Humphreys is special counsel in the firm's Parsippany office, where he concentrates in all aspects of environmental law and related counseling of businesses. He also assists business clients in such emerging fields as environmental sustainability business auditing, renewable energy development and energy conservation infrastructure. Other areas of emphasis in Mr. Humphreys' practice include litigation and regulatory compliance counseling in matters arising under CERCLA, the federal Resource Conservation and Recovery Act (RCRA), Clean Air Act, Clean Water Act, and various state and local environmental laws, as well as environmental aspects of business transactions.

 

Mr. Humphreys represents purchasers and sellers of contaminated or potentially contaminated and “brownfields” properties in transactions involving single and multiple properties, both in the United States and abroad, and he represents lenders and borrowers in commercial loan transactions and loan workouts. He has particular experience in developing strategies for the identification, management and allocation of environmental risk in business transactions, including the use of environmental insurance products, guaranteed remediation contracts and governmental liability protections to offset risk.

 

Mr. Humphreys also represents owners of real property seeking to manage environmental liabilities through voluntary cleanup programs and property transfer laws such as the New Jersey Industrial Site Recovery Act. He has experience retaining and managing environmental engineering firms, including response action contractors, for projects involving the investigation and remediation of contaminated property.

 

Another aspect of Mr. Humphreys' practice involves the representation of clients in prosecuting and defending claims under the federal Superfund law (CERCLA) and comparable state statutes for recovery of costs associated with cleaning up environmental contamination at various types of industrial and commercial properties. Mr. Humphreys also has represented corporate clients regarding regulatory enforcement actions and/or obligations arising under CERCLA, RCRA, the Clean Air Act, Clean Water Act, federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and various state and local environmental laws. In addition, Mr. Humphreys has represented corporate clients and property owners in the prosecution of several insurance recovery cases, leading to the recovery of millions of dollars in proceeds under insurance policies for environmental-related damages and losses.

 

Mr. Humphreys' practice also includes counseling clients in a wide range of compliance issues arising under federal and state environmental laws, primarily with regard to hazardous waste regulation and water and air permitting matters. He has participated in the development of significant federal rulemakings under CERCLA and RCRA through the submission of comments on behalf of affected parties.

 

Mr. Humphreys has written numerous articles on various environmental law issues, including environmental considerations in real estate and corporate transactions, criminal enforcement of environmental laws and hazardous waste cleanup cost recovery. He also is a frequent speaker at conferences and seminars on environmental law topics. His recent speaking engagements have included such topics as "Water Rights and Resource Management," "Buying and Selling Contaminated Properties" and "New York's Brownfields Cleanup Program."

 

Representative Experience

 

Environmental Aspects of Transactions

Oversaw environmental due diligence and negotiation of contractual allocations of environmental risk in the following transactions:

  • The merger of two leading generator sales and service companies.
  • More than a dozen bank branch real estate purchase and leasing transactions for a leading global financial services firm.
  • A leading manufacturer and distributor in the automotive aftermarket industry in a sale-leaseback transaction involving a Long Island City facility.
  • A private equity firm in the acquisition of a medical device manufacturer.
  • A private equity firm and the private equity arm of a global bank in the sale of a medical device manufacturer to a global rehabilitation device company.
  • A multibillion-dollar global software, hardware and services company in the acquisition of an international mail and messaging business.
  • An Indian telecommunications provider in its purchase of a sub-sea cable system connecting North America, Asia and Europe.
  • A private equity company in the acquisition of a medical device manufacturer.
  • One of the largest suppliers of gases and gas handling equipment in the acquisition of six air separation plants in divestiture of the assets of another gas products company.
  • A global investment bank and a private investment firm in the acquisition of a publishing company.
  • A global investment bank Series A financing of “Mosquito Magnet” manufacturer.
  • A national commercial real estate company in an asset purchase from a consumer products company.
  • A leading public/private community development company in its partnership/leases with three military bases under Residential Communities Initiative.
  • A golf course construction and management company joint venture for redevelopment into a golf course of a municipal landfill.
  • A leading manufacturer and distributor in the automotive aftermarket industry in asset purchases from an automotive manufacturer.

 

Superfund

  • Served as liaison counsel to a mid-tier group of 18 potentially responsible parties (PRPs) at the Mattiace Petrochemical Superfund Site in Glen Cove, N.Y., bringing the group's potential liability to a settlement that included an innovative remediation contractor liability buy-out for future costs, the first ever such arrangement accepted by EPA Region II headquarters at a federal Superfund site.
  • Represented individual PRPs and/or defendants at the Combe Fill South Landfill Superfund Site in Chester, N.J.; Burlington Environmental Management Services Superfund Site in Burlington County, N.J.; Maryland Sand and Gravel Superfund Site in Elkton, Md.; Bypass 601 Superfund Site in Concorde, N.C.; ILCO Superfund Site in Leeds, Ala.; Neals Landfill Superfund Site in Monroe County, Ind.; and Parker Landfill Superfund Site in Lyndon, Vt.
  • Prosecuted and defended New Jersey Spill Act cost recovery claims on behalf of a developer in two cases involving nine chromium-contaminated sites in Hudson County, N.J.

 

Regulatory Enforcement Actions

  • Represented a plumbing products manufacturer in a civil complaint by L.A. City Attorney's office pertaining to storm water discharges.
  • Represented a plumbing products manufacturer in a civil complaint by EPA Region IX involving alleged violations of SARA Title III.
  • Represented a consumer electronics, lighting and home appliances company in an appeal of a state water discharge permit matter before the Indiana Supreme Court, resulting in the reversal of two lower court rulings. [Case reported at 614 N.E.2d 916 (Ind. 1993)].
  • Represented property owners and responsible parties in contaminated site remediation projects arising under state cleanup and/or property-transfer statutes, including sites located in New Jersey, New York, Connecticut, Massachusetts, District of Columbia, Illinois, Texas and Florida.
  • Represented corporate clients in enforcement actions brought under various federal and state environmental laws, including the Clean Water Act, Clean Air Act, RCRA, FIFRA, New Jersey Toxic Catastrophe Prevent Act, New York pesticide law, South Carolina air pollution control law, Florida underground storage tank law, California "Proposition 65" law and District of Columbia underground storage tank law.

 

Memberships & Associations

  • American Bar Association, Section on Natural Resources, Energy and Environmental Law
  • New Jersey State Bar Association, Environmental Law Section
  • Federal Bar Association, Section on Environment, Energy and Natural Resources, Environmental Law Committee, Former Chairman

 

Professional Activities

  • Serve as judge for environmental law moot court competitions.

 

Community Activities

  • Patriots' Path Council of Boy Scouts of America, Board of Directors
  • Basketball coach for extramural youth league

 

Honors & Awards

  • Recognized by the Federal Bar Association for service as chairman of FBA Environmental & Energy Committee.

 

Pro Bono

  • Represented indigent plaintiff in complaint against District of Columbia for mishandling of deceased son's corpse.

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