Law Commons^™

Antitrust Balancing, Herbert Hovenkamp

Herbert Hovenkamp

Antitrust litigation often confronts situations where effects point in both directions. Judges sometimes describe the process of evaluating these factors as “balancing.” In its e-Books decision the Second Circuit believed that the need to balance is what justifies application of the rule of reason. In Microsoft the D.C. Circuit stated that “courts routinely apply a …balancing approach” under which “the plaintiff must demonstrate that the anticompetitive harm… outweighs the procompetitive benefit.” But then it decided the case without balancing anything.

The term “balancing” is a very poor label for what courts actually do in these cases. Balancing requires that …

Judicial Treatment Of The Antitrust Treatise, Hillary Greene, D. Daniel Sokol

D. Daniel Sokol

This essay examines Herbert Hovenkamp's influence in antitrust law and policy in the courts. This essay focuses its attention primarily with the Treatise and primarily in the area of merger law – procedural with issues of antitrust injury and substantively with merger efficiencies. The essay provides a case count citation analysis of Hovenkamp's scholarship and compares Hovenkamp to other major figures in antitrust scholarship (Bork and Posner) and to the other antitrust treatises (Kintner and Sullivan) in the courts. Our meta-level findings show that Hovenkamp is far more cited than other treatise writers or scholars who have been recognized for …

Merger Control Under China's Anti-Monopoly Law, D. Daniel Sokol

D. Daniel Sokol

This essay explores the factors that drive merger outcomes under China's Anti-Monopoly Law (AML). While there are currently only a small number of published merger decisions, this paper overcomes that obstacle by utilizing a unique practitioner survey of antitrust lawyers across multiple jurisdictions. This survey captures transactions contemplated, but never undertaken (deterred by the merger regime), as well as mergers notified for approval under the AML. The survey allows for broader inferences to be drawn about the development of Chinese antitrust law, including: the welfare standard used in merger analysis, what industrial policy and other political factors may impact merger …

Quality-Enhancing Merger Efficiencies, Roger D. Blair, D. Daniel Sokol

D. Daniel Sokol

The appropriate role of merger efficiencies remains unresolved in US antitrust law and policy. The Patient Protection and Affordable Care Act (ACA) has led to a significant shift in health care delivery. The ACA promises that increased integration and a shift from quantity of performance through increased competition will create a system in which quality will go up and prices will go down. Increasingly, due to the economic trends that respond to the ACA, including considerable consolidation both horizontally and vertically, it is imperative that the antitrust agencies provide an economically sound and administrable legal approach to efficiency enhancing mergers. …

Balancing Effects Across Markets, Daniel A. Crane

Articles

In Philadelphia National Bank (PNB), the Supreme Court held that it is improper to weigh a merger's procompetitive effects in one market against the merger's anticompetitive effects in another. The merger in question, which ostensibly reduced retail competition in the Philadelphia area, could not be justified on the grounds that it increased competition against New York banks and hence perhaps enhanced competition in business banking in the mid-Atlantic region. I will refer to the Supreme Court's prohibition on balancing effects across markets as a "market-specificity" rule. Under this rule, efficiencies that may counterbalance anticompetitive aspects must be specific to …

Newsroom: Fcc's Sohn On Consumer Protection, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Appraising Merger Efficiencies, Herbert Hovenkamp

Herbert Hovenkamp

Mergers of business firms violate the antitrust laws when they threaten to lessen competition, which generally means a price increase resulting from a reduction in output. However, a merger that threatens competition may also enable the post-merger firm to reduce its costs or improve its product. Attitudes toward mergers are heavily driven by assumptions about efficiency gains. If mergers of competitors never produced efficiency gains but simply reduced the number of competitors, a strong presumption against them would be warranted. We tolerate most mergers because of a background, highly generalized belief that most or at least many produce cost savings …

Tender Offers And The Sale Of Control: An Analogue To Determine The Validity Of Target Management Defense Measures, Stuart R. Cohn

Stuart R. Cohn

The hostile tender offer phenomenon has spawned wholesale defensive measures adopted by target company management. In recent years, confrontations like those of Occidental Petroleum-Mead Corporation and American Express-McGraw-Hill have resulted in target management causing the eventual withdrawal of the tender offer by employing a variety of defensive measures known colloquially as “scorched earth” tactics. The “urge to merge” among major corporations will continue to produce unsolicited, nonnegotiated tender offers at varying scales of size. Consequently, strategies and techniques have been created at a pace faster than the process of litigation, causing a discernible lag between the ingenuity of corporate management …

The Non-Merger Virtual Merger: Is Corporate Law Ready For Virtual Reality?, Stuart Cohn

Stuart R. Cohn

The term virtual mergers describes the relatively recent phenomenon of companies entering into contractual arrangements that are functionally, but not legally, equivalent to mergers prescribed by corporate statutes. Virtual mergers usually involve the shared use of assets contributed by each of the companies. A central element of the transaction is that the two companies remain legally independent, each with its own directors, officers, and shareholders. The arrangements can usually be terminated by either party, allowing each company to return to the status quo ante or exercise buyout rights if contractually provided. Although virtual mergers have occurred among public companies in …

Debunking The Myths Over Big Data And Antitrust, Maurice Stucke, Allen Grunes

College of Law Faculty Scholarship

What are the implications of Big Data on competition policy? Some argue little, if any, and offer several reasons why Big Data is a passing fad. We disagree.As we discuss, competition law can play an important role in maximizing the benefits of a data-driven economy, while mitigating its risks. Our aim here is to first address the competitive significance of Big Data and, second, take on ten myths downplaying Big Data’s antitrust significance.

Judicial Treatment Of The Antitrust Treatise, Hillary Greene, D. Daniel Sokol

UF Law Faculty Publications

This essay examines Herbert Hovenkamp's influence in antitrust law and policy in the courts. This essay focuses its attention primarily with the Treatise and primarily in the area of merger law – procedural with issues of antitrust injury and substantively with merger efficiencies. The essay provides a case count citation analysis of Hovenkamp's scholarship and compares Hovenkamp to other major figures in antitrust scholarship (Bork and Posner) and to the other antitrust treatises (Kintner and Sullivan) in the courts. Our meta-level findings show that Hovenkamp is far more cited than other treatise writers or scholars who have been recognized for …

Quality-Enhancing Merger Efficiencies, Roger D. Blair, D. Daniel Sokol

UF Law Faculty Publications

The appropriate role of merger efficiencies remains unresolved in US antitrust law and policy. The Patient Protection and Affordable Care Act (ACA) has led to a significant shift in health care delivery. The ACA promises that increased integration and a shift from quantity of performance through increased competition will create a system in which quality will go up and prices will go down. Increasingly, due to the economic trends that respond to the ACA, including considerable consolidation both horizontally and vertically, it is imperative that the antitrust agencies provide an economically sound and administrable legal approach to efficiency enhancing mergers. …

Debunking The Myths Over Big Data And Antitrust, Maurice Stucke, Allen Grunes

Scholarly Works

What are the implications of Big Data on competition policy? Some argue little, if any, and offer several reasons why Big Data is a passing fad. We disagree.

As we discuss, competition law can play an important role in maximizing the benefits of a data-driven economy, while mitigating its risks. Our aim here is to first address the competitive significance of Big Data and, second, take on ten myths downplaying Big Data’s antitrust significance.

International Implications Of The 1982 Merger Guidelines, Vincent Draa

Georgia Journal of International & Comparative Law

No abstract provided.

Incorporating Legal Claims, Maya Steinitz

Faculty Scholarship

Recent years have seen an explosion of interest in commercial litigation funding. Whereas the judicial, legislative, and scholarly treatment of litigation finance has regarded litigation finance first and foremost as a form of champerty and sought to regulate it through rules of legal professional responsibility (hereinafter, the "legal ethics paradigm"), this Article suggests that the problems created by litigation finance are all facets of the classic problems created by "the separation of ownership and control" that have been a focus of business law since the advent of the corporate form. Therefore, an "incorporation paradigm," offered here, is more appropriate. "Incorporating …

Buyer Power And Healthcare Prices, John B. Kirkwood

Faculty Articles

One major reason why healthcare costs are much higher in America than in other countries in that our prices are exceptionally high. In this article, I address whether we ought to rely more heavily on buyer power to reduce those prices, as other nations do. I focus on two sectors where greater buyer could easily be exercised: prescription drugs covered by Medicare and hospital and physician services covered by private insurance. I conclude that the biggest buyer of all, the federal government, should be allowed to negotiate Medicare prescription drug prices. That would substantially reduce the prices of many branded …

Bankruptcy Survival, Lynn M. Lopucki, Joseph W. Doherty

UF Law Faculty Publications

Of the large, public companies that seek to remain in business through bankruptcy reorganization, only 70% succeed. The assets of the other 30% are absorbed into other businesses. Success is important both because it is efficient and it preserves jobs, communities, supplier and customer relationships, and tax revenues. This Article reports the findings of the first comprehensive study of the division into successful and failed reorganizations. Eleven conditions best predict companies’ survival prospects. First, a company that even hints in the press release announcing its bankruptcy that it intends to sell its business is highly likely to fail. Second, reorganizations …