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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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 e...

Navigating antitrust risks arising from tariffs (Part 2)