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Kaye Scholer’s Antitrust practice provides the experience and insight necessary to guide clients through the stressful and challenging process of responding to competition-related criminal investigations and enforcement proceedings. Our practice comprises attorneys across four offices and two continents, whose mission is to provide clients with solutions tailored to their business and legal needs. We assist clients with criminal and civil investigations and litigation, class action and multijurisdictional litigation, regulatory and merger work. That breadth gives us the perspective on antitrust policy and practice across a wide variety of industries to develop creative responses and solutions for our clients.

Our antitrust litigation experiences in the pharmaceutical, biologics and medical device areas is particularly valued. LMG Life Sciences has recognized our unparalleled capabilities, honoring us with its Antitrust Litigation Firm of the Year; Antitrust Litigator of the Year (Saul Morgenstern, chair); and Impact Case of the Year (Clayworth et al v Pfizer et al) awards in 2015.
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The Numbers: Our Accomplishments

  • $1.5 billion Value of pharmaceutical company acquisition for which we successfully secured FTC approval
  • $26 million Price our client had to pay in a DOJ multicompany price-fixing investigation—the lowest fine (and narrowest charge) imposed
  • 6 Number of weeks of federal court trial in which we successfully defended client against monopoly charges

Capabilities: How We Do It

  • Multiple perspectives, singular solutions: Having represented both plaintiffs and defendants in antitrust litigation, we are able to see all sides of an issue and develop innovative approaches to resolving our clients’ problems, whether by litigating to judgment or, where appropriate, obtaining a favorable settlement. Our lawyers have been involved in many of the more significant antitrust cases of the past decade.
  • Former federal prosecutorial experience: With lawyers knowledgeable in handling antitrust and white collar criminal matters, including a former prosecutor who recently joined us from the National Criminal Enforcement Section of the US Department of Justice Antitrust Division, and several former Assistant United States Attorneys, Kaye Scholer can work with government lawyers and investigators in the early stages of an investigation to best position the client to obtain a favorable resolution.
  • Compelling case-building: With years of experience working inside and opposite the DOJ and FTC, our lawyers know what questions to ask in order to understand both the essence and details of a proposed transaction quickly, and how to develop and present the client’s story to the authorities in a manner that will achieve the desired results.
  • Full-spectrum prevention and remediation support:
    • Prevention
      • Counseling on business strategies, M&A, licensing, patent (ANDA) litigation settlements, competitor collaborations.
      • Pre-merger filings and negotiations with government agencies to obtain clearances.
      • Executive and employee education and compliance training, including developing written compliance policies, guides and manuals, and conducting seminars.
    • Remediation
      • Administrative litigation before the FTC and ITC
      • Civil and criminal investigations and proceedings.
      • Class action and multi-jurisdictional litigation.
      • Litigation between individual parties.
      • Patent/antitrust litigation—bringing infringement actions and defending against antitrust counterclaims or separate antitrust cases
  • Auto Parts Criminal Cartel Investigation: Represented an automobile parts manufacturer in a major DOJ investigation. Commentators have described this investigation as the largest criminal investigation in the history of the Antitrust Division. This matter is the subject of investigations in several different countries, and Kaye Scholer is working closely with law firms from several jurisdictions.
  • Auto parts manufacturer (senior executive and primary individual target)Successfully represented client in antitrust criminal investigation, which concluded with no charges filed against client.
  • Clayworth v. Pfizer Inc., et al.: Obtained affirmance of summary judgment on behalf of Novartis Pharmaceuticals Corporation in the trial court for a group of brand name prescription drug manufacturers, before the California Court of Appeals and rejection by the US Supreme Court of the plaintiffs’ petition for a writ of certioari.
  • EID and Seiko Epson Corporation: In a US DOJ criminal antitrust investigation of price fixing in the TFT-LCD industry that was resolved with a guilty plea by EID to a narrow charge and payment of a $26 million fine, the lowest fine imposed on any company in the investigation.
  • King Pharmaceuticals: Defended in a cluster of class actions brought on behalf of direct purchasers, indirect purchasers for resale and end-payor purchasers of Skelaxin®, a brand name prescription drug in which the plaintiffs allege that King and co-defendant Mutual Pharmaceuticals conspired to prevent or delay generic competition for Skelaxin®.
  • Novartis International AG: Advised client in connection with competition and regulatory approval aspects of its recent acquisition of Fougera Pharmaceutical. The FTC approved Novartis’ $1.5 billion acquisition of Fougera Holdings Inc. from several private equity funds.
    • Shortlisted for the LMG Life Sciences M&A Deal of the Year (2013)
  • The Penguin Group USA: As co-counsel in three antitrust lawsuits alleging that collusion between Apple and the five largest publishers to switch e-book pricing to an agency model caused the plaintiffs in those suits to be unable to compete in the sale of e-books. The plaintiffs are three independent booksellers who hoped to compete in the sale of e-books.
  • Two Japanese executives of a maritime shipping company: Currently representing clients in an antitrust criminal investigation of the international car shipping industry.
  • US auto parts manufacturer (two European executives): In this wide-ranging DOJ investigation, we avoided any criminal charges against the executives as well as the possibility of a guilty plea, even though the employer and other executives agreed to plead guilty to criminal price fixing.
  • ValleyCrest Companies, LLC (and its parent MSD Capital, LP): Successfully advised the client on the antitrust aspects of its definitive merger agreement with The Brickman Group Ltd. LLC.