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Evaluating The Risks Of Market Swaps, Maurice Stucke

Scholarly Works

An asset swap between two competitors can be (i) per se illegal under Section 1 of the Sherman Act or (ii) a potentially legitimate sale of assets under Section 7 of the Clayton Act. The case law and antitrust commentary vary as to which standard should be applied, and the impication can be significant for the business entities contemplating the deal. This article outlines five factors to assist in evaluating the asset swap's legality under the federal antitrust laws, and the critical determination of which standard to apply to a potentially high risk transaction.