Cliches Can Backfire

September 08, 2011

Speaking as if you’re the 800 pound gorilla in the room can represent prima facie evidence of anticompetitive intent.

“In my many years as an antitrust lawyer, I have come across countless examples of unmeasured commercial communication, including, in relation to one’s competitor, the ‘deprivation of all commercial oxygen’ and ‘keeping your foot on their neck.’”  Such language is inevitably damaging when it comes to defending one’s client against allegations that it may, for example, have abused their dominance and the impression created will almost invariably be difficult and costly to defuse,” writes Craig Pouncey, managing director of the global legal firm, Herbert Smith LLP.  

The former head of the antitrust division of the U.S. Department of Justice, Chirstine Varney, said small deals of several million dollars can get the DoJ’s attention. “If a deal is anti-competitive, the government should approach it with the same amount of rigour” and “the size of the deal does not drive the anti-trust analysis.”

Executives at companies of every size must avoid anti-competitive statements that give ammunition to the DoJ.

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