Antitrust lawyers quake at that opening gambit, whether from a fellow attorney or a client. My now-habitual response: “There’s no such thing!”
OK, that’s a bit harsh. Of course there are some quick questions. For example, “Is price fixing a criminal offense?” Or: “What is the Rule of Reason, anyway?”
But we never get questions like that, because good business people are way too smart not to know those answers well enough to avoid incurring legal fees in pursuit of perfect certainty. No, the questions posed to the antitrust ” specialist” are far more nuanced. More importantly, the tough questions balance delicately like spinning plates on a fulcrum of facts. Details and context are all-important. The answer awaits and depends upon specifics–sometimes seeming nits which, like the fly that lands on the edge of the spinning plate, kills the juggler’s exquisite balance and sends the plates crashing to the stage.
It usually takes a little time to tease out those details and reach an informed judgment about antitrust risk–not to mention opining about the best options consistent with the client’s business goal. In fact, it isn’t always clear at the outset just what that goal is; even the client may not be sure: “We’ve just always done it that way.” Or, “I know other companies [who do not have market power with their products or technology] do this!”
So, you harried and hurried masters of technology, try to be patient with your general counsel or outside antitrust counselor when you have a “quick question.” Take a minute to explain the context, what you want to achieve, the likely competitive impact. Have faith that the questions posed back to you are not as irrelevant as they seem.
Better the right answer than the wrong one, quickly delivered.