Consummated Mergers: Analysis and Enforcement
Please join Bates White and ESMT Competition Analysis to explore the role of retrospective analysis in merger enforcement. We will discuss the methodological, legal, and enforcement policy questions that arise in the course of investigations involving the analysis of consummated mergers.
Session 1: Evaluating evidence on the competitive effects of consummated mergers
William E. Kovacic
Director of the Bureau of Economics, FTC
Litigation II Section Chief, DOJ
D. Bruce Hoffman
Partner, Hunton & Williams
T. Scott Thompson
Partner, Bates White
George A. Rozanski
Partner, Bates White
The session will begin with a brief presentation on methods and potential uses of retrospective analysis, including recent case studies. We will take a practical look at the purposes of and methods for evaluating the effects of consummated mergers:
- How can retrospective analysis inform merger enforcement policy?
- What is the appropriate role of retrospective analysis for defending or challenging proposed mergers?
- What kinds of evidence of competitive effects from consummated mergers is persuasive?
- What are the potential sources of bias in retrospective studies?
- When is it appropriate or inappropriate for enforcement agencies to compel production of data and other evidence for purposes of retrospective review and how can the rights and privacy of private parties be preserved?
Session 2: Taking enforcement action against consummated mergers: when is it appropriate and how should it be done?
J. Thomas Rosch
ESMT President; former Chief Competition Economist, EC
Clifford H. Aronson
Partner, Skadden, Arps, Slate, Meagher & Flom
- Robert F. Leibenluft
Partner, Hogan & Hartson
- Christine Wilson
Partner, O′Melveny & Myers
- Mark J. Botti
Partner, Akin Gump Strauss Hauer & Feld
The agencies have demonstrated a willingness to revisit consummated transactions for purposes of possible enforcement litigation. This raises questions of enforcement thresholds, legal procedures, and post-merger remedies:
- When, if ever, is a consummated merger safe from legal challenge?
- What legal, practical, and procedural issues arise for agencies and private parties in the course of such reviews?
- What conditions warrant the ex-post review of a merger?
- What are appropriate remedies for consummated mergers found to have had anticompetitive effects?
- How should retrospective analysis be used in reviewing, challenging, and litigating consummated mergers?
Reception, dinner, and keynote address
To cap off the day, Bates White and ESMT Competition Analysis will host a reception and dinner. It will feature opportunities to interact with leading academics and other antitrust attorneys in an informal setting.
FTC Commissioner J. Thomas Rosch will give the keynote address on “Antitrust Law Enforcement: What to do About the Current Economics Cacophony.”