Analysis

Antitrust Defense: What Clients Should Know Before Their First Call

By John D. Kirby, Former U.S. Federal Prosecutor ·

July 2026 · 6 min read · Federal Defense Network, Former Federal Prosecutor

Antitrust matters arrive with a particular kind of pressure. A civil investigative demand lands on your desk, a competitor files suit, or a merger review stalls — and suddenly the timeline is not yours to control. Knowing what to expect from defense counsel before you retain anyone makes that first conversation far more productive.

What Antitrust Defense Actually Involves

Antitrust work spans several distinct situations: government investigations, private litigation between businesses, merger and acquisition review, and counseling on pricing or distribution practices before a problem arises. Each has its own rhythm. Investigations move on agency timelines. Private suits move on court calendars. Counseling is proactive and often the least expensive form of defense.

A firm handling these matters should be able to tell you quickly which category your situation falls into and what that means for urgency.

Questions Worth Asking Early

Why Regulatory Awareness Matters

Antitrust enforcement priorities shift with each administration and with new agency leadership. Guidance documents get revised, merger guidelines get rewritten, and enforcement theories evolve. Defense counsel who track these changes closely are better positioned to anticipate how an agency will view your conduct.

Some firms maintain that awareness in-house; others subscribe to monitoring services. The trade-offs between those approaches are outlined in this comparison of DIY federal register tracking and paid compliance monitoring. For clients, the practical question is whether your counsel can speak confidently about current enforcement posture — not last cycle's.

What the First Meeting Should Cover

Expect a thorough intake. Counsel will want the chronology of events, the identities of everyone involved, copies of any correspondence with regulators or opposing parties, and a clear statement of your business objectives. This isn't just information-gathering for its own sake. Strategy depends on facts, and incomplete facts produce brittle strategy.

You should also discuss privilege and confidentiality early. Communications with counsel are generally protected, but that protection has limits — particularly if documents were created before you sought advice or shared with third parties.

Cost and Engagement Structure

Antitrust defense is rarely inexpensive, and any firm that suggests otherwise deserves scrutiny. Ask how the engagement is structured — hourly, blended rates, capped fees, or phased billing tied to milestones like motion practice or discovery close. Ask for regular budget updates in writing. Good firms provide them without being asked twice.

Choosing Counsel With Confidence

Look for demonstrated experience in the specific forum you're facing — a firm that excels in private litigation may be less suited to an agency investigation, and vice versa. Ask who will actually do the work, not just who pitches the engagement. And pay attention to how clearly they explain the process; clarity in the first meeting usually predicts clarity throughout the matter.

Antitrust exposure is stressful precisely because so much of it is outside your control. The part you can control is choosing counsel who prepares you properly from day one.

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