Navigating antitrust risks arising from tariffs (Part 2)

In the second installment of our two-part series, international trade lawyer Philippe Heeren is joined by antitrust and competition lawyers Chris Brennan, Natasha Tardif, and Lucile Chneiweiss to discuss practical steps that companies operating in the United States and Europe can take to navigate antitrust risks arising from tariffs. Building on the themes explored in Part 1, this episode offers actionable guidance for in-house counsel, including best practices for information sharing, price adjustments, and implementing compliance safeguards in response to tariff volatility.

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Transcript:

Intro: Trading Straits brings legal and business insights at the intersection of the shipping and energy sectors. This podcast series offers trends, developments, challenges and topics of interest from Reed Smith litigation, regulatory and finance laws across our network of global offices. If you have any questions about the topics discussed on this podcast, please do contact our speakers.

Philippe: Hi, everyone, and welcome back to Trading Straits. My name is Philippe Heeren, an international trade partner here at Reed Smith. We know companies are grappling with how best to respond to tariffs and considering price and supply chain adjustments are often part of that process. With antitrust enforcers scrutinizing competitor conduct, I am partnering with our antitrust and competition team to chair a two-part series where we will be discussing the practical impact of recent developments and key priorities for in-house counsel. I hope you had the opportunity to tune in for the first part of this series in which members of our international trade and antitrust teams already discussed broader antitrust risk and tariff developments. For the second episode, we are going to explore best practice in relation to information sharing, price adjustments, and compliance in the context of tariffs. Today, I am very happy to be joined by Chris Brennan, Natasha Tardif, and Lucile Chneiweiss. Chris, Natasha, Lucile, would you mind briefly introducing yourselves?

Natasha: Yes. Hi, everyone. My name is Natasha Tardif. I'm an EU competition and regulatory partner in Reed Smith’s European Group.

Chris: My name is Chris Brennan. I am a litigation partner in the firm's antitrust and competition practice. My practice particularly focuses on the intersection of antitrust and IT.

Lucile: I’m Lucille Schneeweiss. I'm an antitrust, regulatory and litigation counsel based out of the Paris office.

Philippe: Wonderful. Thank you so much. Looking specifically at contracting, what are the antitrust risks do you see in relation to the tariff activity? Or let me phrase it differently, how can companies structure their contracts to address tariff volatility without violating antitrust laws? Chris, can you share your views with us on that?

Chris: Sure. I think the first thing we want to start with is before we take any new steps, you know, what do our existing contracts say? I think this is a great opportunity to pull those out, to look and see, well, what are the clauses protections we have in there that we can leverage? Certainly, this is a potentially unprecedented time in terms of the breadth of tariff activity. So I think most companies will need to be taking additional measures. But can we leverage force majeure clauses? Some of these tariffs have been predicated, at least from the United States, on the basis of asserted national emergencies. There may be options under contracts to change pricing in light of that, as well as potential surcharges that may be coming through due to the specific tariffs on inputs such as aluminum, copper, and steel.

Philippe: Natasha, is there anything you would like to add to that from your experience?

Natasha: I absolutely agree with Chris. It is super important to look into one's contract because one, already have the tools in place. If one doesn't have them, one might want to think of adding tools moving forward, either when your contracts come to an end, when you're renewing them, or even asking for a renegotiation to the other party because of the exceptional circumstances. So, what can you do? Obviously, you can add price adjustment clauses and include tariff-specific adjustment mechanisms. Obviously, that's not going to be an easy one if you're asking for a renegotiation and your contract hasn't come to an end. Also, you can add a cost allocation provision or a change in law or hardship clause. So basically, there are a number of tools that one can include in a contract to deal with volatility tariffs and or other adjustments in regulations or in the economy. While such clauses and strategies can mitigate tariff risks, they must not overlook the antitrust rules and regulations, and one must make sure that while renegotiating those clauses, one is not price-fixing or margin-fixing. Also, another safeguard to bear in mind is resisting the urge to apply those tools too broadly and make them sort of an industry approach. In other words, do not approach your competitors and discuss with them collectively the idea of adjusting your clauses in the same way with your contracting parties and your commercial partners, because even though the economic context may be a complex one and the authorities can understand the need for one to renegotiate, they will still be harsh on any form of collusion when doing so.

Philippe: Right. Thank you so much, Natasha and Chris, for these very helpful insights. Now, switching to a somewhat broader topic, because we just mentioned the fact that sharing information with competitors can be tricky. Lucille, what are the types of information that companies can lawfully share with competitors or more publicly with other companies?

Lucile: To take a step back, we have to remember that antitrust laws and rules will generally prohibit the exchange of competitively sensitive information amongst competitors, especially regarding current or future prices, our costs, output, our business strategies, even most recently our HR practices. And that's going to be the same thing about the way that we take into account the new tariffs, the companies take into account new tariffs and what their reactions are going to be, whether they're going to be absorbing it, passing it on, how they're going to try to adjust either their pricing or their business strategy to address those tariffs. And the ways in which competitors will try to make sure that their behavior is coherent with what the market is ready to accept, or what their own competitors are going to be doing. Is where the line is going to be very fine and where you're going to have to be very careful. Even the appearance of exchanges between competitors, either directly, indirectly, through formal meetings, through informal communications, can lead to regulatory sanctions. So companies can think about entering into joint lobbying efforts or against tariffs or about how to tackle it or how to support governments or even the European Commission and their own reactions to tariffs and any retaliatory tariffs that are governments they want to impose themselves. But any such activity is going to have to be safely guarded, right? So make sure that if you do exchange with other parties on the market about what their own behavior is going to be, or if you ever join any joint or concerted action, it has certain safeguards. It's always the case, like when you're participating in professional associations, trade associations, lobbying efforts, you have to put in place certain safeguards. You have to make sure that you don't go too far or exchange information that's too sensitive. Always be careful about the way that you address such topics. Have an agenda about any type of meeting that you have. Memorialize whatever is being said. It's always helpful to have an anti-trust professional that's there to be sure to pull you back if you ever go too far in whatever topics is addressed at such meetings. And yeah, make sure that you record where the information is coming from to avoid future references or negative inference or interpretation from competition authorities or even plaintiffs in the future.

Philippe: Chris, any thoughts from a U.S. standpoint on that?

Chris: Sure. I mean, Lucille just gave an incredibly comprehensive answer that I agree with completely. Let me just, for purposes of putting that into action, give two examples. One, I think that, you know, you should be exchanging and one that you absolutely shouldn't. Right now, we're in such a period of volatility where I'm hearing from clients on a weekly basis because their tariff posture is changing as the scope of tariffs come on and off and as negotiations with countries, especially the U.S. Negotiations with countries, are changing constantly. I think one of the places where companies can share information is just what tariffs are they facing. What are the tariffs that are being faced? Lobbying the U.S. Agencies that are responsible in terms of seeking clarification. There are processes right now in place in the U.S. Government that are looking to expand certain tariffs to pull more codes in from a customs perspective. So we know the situation has been changing. It's going to continue to change. Just that sort of informational clarity. I think that's a perfect place for a little bit of resource sharing. On the flip side, timing is where everyone gets in trouble here. And we know from past supply and demand shocks, I'm particularly thinking of steel prices that came out of about a decade ago or so, or maybe two decades ago. I'm dating myself. The question wasn't whether companies were going to pass those costs along. That was inevitable. The real concern was when, who was going to be a first mover. And there was this, you know, there was this feeling in companies that they didn't want to get out ahead of the group. And that led to cases in certain industries where there were allegations that companies had wrongfully conspired on the timing of that. And so, you know, I think it's important to say we're not just talking about calling up a rival and saying, you know, we're going to go up 25%. Can you go up 25%? Of course, that's illegal. But you can get in just as much trouble by saying, hey, we're going to hold off until Q4 or, you know, why did you jump so quickly? So just think about the broader, the non-price elements of this that can get you in just as much trouble.

Philippe: Thank you very much, both. And there's one piece in particular that I want to focus on for my next question. And it's something that Lucile already referred to, the fact that you need to make sure that whatever you do in this space needs to be properly documented and justified. Natasha, turning to you, can you share your thoughts on the broader compliance safeguards that companies should implement or should think of at least to reduce the risk of antitrust violations when responding to tariffs? And in particular, that documentation piece, what is the type of documentation or the pieces of documentation that companies should maintain to demonstrate independent or independency in decision-making regarding pricing and supply chain adjustments?

Natasha: Yeah, very good point, Philippe. I mean, I would say the first thing is training. Training is crucial, right? I mean, you want to make sure that, you know, all your employees or the relevant employees at the company, particularly those in charge of negotiating prices, those in charge of being in connection with industry organizations, are aware of what they can and cannot do. And you would be surprised by how much people still don't necessarily understand the limits of what they can discuss and not discuss. A number of people still believe that something that's always been done in an industry is okay to perpetuate. So I think training and regular and repetitive training is very important in that regard. Now, coming to your specific question on documentation, You know, when you are investigated, the authorities are going to see a huge amount of data. And then what they do with that is they read it through their own lenses, right? So they are going to read it through suspicious lenses. They are going to look at your text messages. They are going to look at your computers, emails, chats, handwritten notes from a suspicious point of view. And they're going to interpret them against you, even though they're supposed to look at them objectively. This is not the way they look at them. So, because when they come and investigate you, they already have strong suspicions. So, what you need to do is make sure that you have clear documents that can explain why you've been doing this and why you've been doing that. And when I say this and that, what I mean is, what are your internal deliberations that led to that price increase? What are the internal market analyzers that you run? How did you run them? Where did you buy the data you had on your competitors? What's the underlying information you have for your decision-making process? The rationale for the contract adjustment or the price changes you made? All of those things, obviously, in real life, you do document them. So you do have a number of documents that support your decision-making process. Make sure you keep them, but don't just keep them in a, I would say, unargumented way. In other words, keep them in a way where you think that someday someone might look at them and might not look at them from the right point of view. So you should be able to explain them just by looking at them and showing the objectivity or the real strategic reasons, the real market, economic reasons that led you to make those decisions. And one point that I also wanted to allude to, which is a topic in itself and that we could discuss in a different podcast, is the algorithms you use. So any automated tools you use to adjust your prices, for instance, that's also going to be something that the authorities might look at and might look at the way you set them and how they function. And so collusion through algorithms is also something that authorities look at. So one has to be very careful to all the tools one uses when dealing with sensitive data.

Philippe: So I'm hearing the need for proper documentation. I'm also hearing that somehow you need to look at it from an investigative standpoint almost and put yourself in the shoes of someone who's coming in and reads those documents as if it were a down rate, right? So does that align with your experience, Chris, in documentation and retaining documents post-decision making?

Chris: Yeah, absolutely, Philip. And I think, I would just say, I think it goes beyond that. And Natasha's response speaks to this. You need to have a documented narrative, right? And what I mean by that is I can guarantee you that in the near future and for years to follow, we're going to see antitrust cases filed in the U.S. Where, you know, a core part of the allegations is going to be this chart that shows that prices went up uniformly in an industry. In this time period. And they're going to say, see, look at that. That's a conspiracy to raise prices. Well, it's not necessarily, right? If everyone is subject to the same supply shocks and everyone's adjusting and they're all making unilateral decisions, prices will uniformly rise. That's not evidence of a conspiracy. But that's not how it's going to be described in the complaint. And that's not how the government is going to go into it when they investigate you. And rest assured, the U.S. agencies have absolutely said they see this as an opportunity for potential collusion and they're going to enforce. So that is coming. The question is, and as Natasha said, what's your counter narrative? And it's going to be very helpful if that's not being constructed post litigation, but it's actually a product of an organized narrative that the company built that said our inputs are rising 35%. We are going to absorb 10% of that, but we need to pass along 20%, right? Have that laid out in an organized fashion, not a collection of emails, so that when someone comes knocking, you're able to give your antitrust counsel the rationale in a contemporaneous, well-documented way.

Philippe: Listening to this, I would almost say make it public, right? Speak publicly about what you're doing and you're getting ahead of these kind of investigations. But I'm sure you have concerns with that too, right? So what would be the upside versus the downside from a risk perspective with being vocal about the steps you're taking and the changes you're making to supply chain and or pricing.

Lucile: It all comes back to this idea that competition authorities have, that each company should make their own marketing decisions and business strategy decisions independently. And, of course, based on each company's own costs and market conditions and business objectives. And one of the risks in making those public, making the market on which you operate too transparent, counterintuitively, is that now you may be signaling to your competitors, here's what I'm doing, do the same. And now you're actually influencing or trying to influence or have the effect of influencing your competitors' business strategies. And depending on the way that they react, depending on the way that they now set their own business strategies, if it is because of you, not just because of their market intelligence, but because of specific things that you hold them to do. Now competition authorities may consider that it is implicit collusion. And that's where it's really interesting that competition authorities are going after something that we call signaling. Signaling can be very broadly understood. And in effectuality, it's a very fine line. We can't say don't make anything public. Of course, you're going to make a certain thing public. Of course, a lot of your marketing strategy is going to be out in the open. But you shouldn't be going too much into details, especially not about your future pricing, your future strategy. Don't go into too much details about that. Even as recently as July of 2025, the European Court of Justice said that the European Commission was right in using indicia of signaling or public information to start an investigation into anti-competitive practices. In that particular case, the company in earnings calls has said things like, we want to signal that. We want to say that we will. We want to tell everyone that our intention is to blah, blah, blah. And this was enough to justify for the European Commission starting an investigation into possible evidence of collusion. That's not to say that that's going to be evidence enough to sanction or to say that a collusion actually happened, but at least it was enough to start a downroute. So companies should be particularly vigilant in the language that they use, in making their public statements. And, yeah, it serves as a reminder that antitrust risks extend beyond those private meetings, those backdoor, those lunches between direct competitors. Those private phone calls on burner phones. It can stem from public statements that you make if the competition authorities put their narratives on them.

Philippe: I’m hearing it's a fine line and a difficult line to walk and that there's important precedent from the European Commission in terms of signaling. Are we seeing a similar kind of approach in the U.S., Chris? Are the enforcement authorities looking at it from the same angle?

Chris: Yeah, I think signaling is absolutely on the radar of U.S. Enforcement agencies. And I think, you know, from a practical perspective, Lucille's right. This isn't black and white. But the two things I would caution when we think about signaling is understand the transparency level of your market that you operate in and understand sort of the risks associated with forward-looking guidance on what would be non-public information, right? So I think, you know, U.S. companies, especially public companies, are obligated to provide forecasts and forward-looking guidance, right? But in some industries, pricing is public, and in some industries, it's not. Two gas stations, putting prices up across the street from each other is public. And so I don't think there's a risk of that becoming signaling. But if you're in an industry where all of your contracts are private and the terms are private, and suddenly you're on a call saying, we think we need to raise our average price by 20%, that could get in trouble. And I think the same is true if you're, again, going back to sort of timing issues. If you're forecasting, you know, 12-month guidance and you're putting an approximate date on when you think you're going to see some sort of tariff action or response to tariffs, that could also get you in trouble. But it's really know your industry and stick to don't reveal what has been traditionally non-public information in the context of this specific issue that could be interpreted as signaling.

Philippe: For my last question, I want to go back to, I think, where we started the discussion today, which was about contract changes. I want to give the listeners a few top tips when they start looking into contract changes. Pull out old contracts, but also look at potentially new contracts and foresee any tariff clauses in those. Chris, can you share one or two top tips for companies to consider when they start venturing into this contractual work?

Chris: Well, I think you're right in the sense that this will be a lesson learned, right? And I think future agreements are going to include some sort of tariff escalation clause, as long as that's something that can be sort of pushed through with your counterparty. You know, my advice, like most scenarios here is, you know, tie that to some objective metric if you can. Right. So so try to take some of the gray out of that clause that reduces the risk that reduces the odds that your conduct pursuant to that clause could then be seen as collusive with other rivals. You know figure out a way that makes sense for your industry whether it's a base price index whether it's a tariff It's a proportion of a tariff, Find a way to try to make that as mechanical as possible, And if you're able to put that sort of agreement through Then hopefully you're just going to be able to say well, we're acting pursuant to a contract This cannot be the product of anything that would violate the nhs laws Now of course caveat to that right if if everybody starts to implement the same type of clause. That is its own sort of potential inquiry under the antitrust laws, too. And so we've seen that just in the U.S. in the context of, say, retail price maintenance, right, where if an industry adopts the same clause, there's a question of maybe that's been pushed through by a dominant retailer. So it's sort of a nested set of risks. But presuming you're not doing something in the context of contracting that is collaborative or collusive, try to make it as objective as possible.

Philippe: Which then also brings us back to our earlier discussion about documenting why you do certain things, right? And if you then start implementing new provisions, which may look very similar to what your competitors are doing, it's very helpful to have a justification in how you came to the decision-making to implement that clause. Natasha, for the closing of this podcast, I'm turning it to you. Any top tips from your experience on contracting?

Natasha: Yeah, what I find interesting in everything that you guys just said is that, indeed, there are very good reasons why we do certain things. And there are also triggers in the industry that create certain behaviors. So, for instance, Chris was mentioning earlier the raise in inputs or, you know, we're talking tariffs. So there are certain industry triggers that are the same for everyone. Now, those triggers generally create collusive behavior. So the authorities actually know that when there are those kind of triggers, one, companies feel threatened and they don't want to be dealing with it individually. So they think it's legitimate and it makes sense to deal with it collectively. While it may make sense to lobby collectively, for instance, to lobby the authorities or lobby to change the regulations, it's not legitimate, even though it may seem logical from a commercial perspective, it's not legitimate to agree on how we all use that raising input prices or those tariffs to actually raise our prices in one and the same way and take advantage of the situation. That's how at least it's seen by the authorities. So I think those moments that are sensitive moments are also considered as sensitive moments from a competition perspective. That's a comment I wanted to make. And also, so everyone has it in mind, because one might think that under those circumstances, the authorities might be more lenient. And in terms of, you know, how one must be looking at its clauses, I think, you know, it's definitely, it is important to bear in mind that when we're drafting a contract, everything may seem perfect, but one must prepare for those difficult situations and those difficult times. So one must take the time to include those tools that will help us in those difficult situations. So I would say, you know, to Chris's point earlier that, you know, sometimes you might want to look into your contracts. You already have those tools. Those that already have them is because they thought of them in the very first place. And then, yeah, do not hesitate to call your commercial partners and bring in the discussion because to renegotiate, even though your contract doesn't have the tools and it hasn't come to an end because everybody is also better off with a renegotiated deal rather than a dysfunctioning one. So I would say be bold in that regard as well.

Philippe: Very helpful. Thank you. And this immediately marks the end of our two-episode series where we discussed antitrust risks in the current tariff environment. I would like to very much thank Natasha, Lucile and Chris for the great insights and you as a listener for tuning in.

Outro: Trading straits is a Reed Smith production. Our producers are Ali McCardell and Shannon Ryan. For more information about Reed Smith's energy and natural resources or transportation practices, please email tradingstraits@reedsmith.com. You can find our podcasts on podcast streaming platforms, reedsmith.com, and our social media accounts at Reed Smith LLP.

Disclaimer: This podcast is provided for educational purposes. It does not constitute legal advice and is not intended to establish an attorney-client relationship, nor is it intended to suggest or establish standards of care applicable to particular lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers. All rights reserved. lawyers in any given situation. Prior results do not guarantee a similar outcome. Any views, opinions, or comments made by any external guest speaker are not to be attributed to Reed Smith LLP or its individual lawyers.

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