Trends and takeaways from recent merger enforcement actions
Joseph Farrell, Director, Bureau of Economics, Federal Trade Commission
Robert Kramer II, General Counsel, Office of the Assistant Attorney General, Department of Justice
John H. Lyons, Partner, Skadden, Arps
Scott A. Sher, Partner, Wilson Sonsini Goodrich & Rosati
David P. Wales, Partner, Jones Day
George A. Rozanski, Partner, Bates White Economic Consulting (moderator)
It has been more than two years since the change in administration and almost a year since the publication of the new Horizontal Merger Guidelines. This new regime has been in place long enough now to allow for an informed assessment of what changes it has brought about. The panel will discuss recent developments in merger enforcement, with panelists from the enforcement agencies and the private bar exploring the following topics:
- What impact, or lack thereof, have the Guidelines had on enforcement? Do they reflect changed thinking on coordinated effects as well as unilateral effects? How, if at all, should merging parties change their approach in the wake of the new Guidelines? How are the courts likely to interpret them?
- Does the apparent trend towards increased use of behavioral remedies represent a real change in the agencies’ enforcement stance? Is the Antitrust Division’s current remedy practice consistent with its 2004 Remedy Guidelines?
- Are the agencies now more likely to address vertical concerns in mergers than they were under previous administrations? Where should practitioners look for guidance on how agencies analyze non-horizontal mergers?
Is it time to improve the Foreign Trade Antitrust Improvement Act?
Amy B. Manning, Partner, McGuireWoods
Jerome A. Murphy, Partner, Crowell & Moring
Mark Rosman, Partner, Wilson Sonsini Goodrich & Rosati
Jodi Trulove, Partner, Dickstein Shapiro
Charles L. Miller, Partner, Bates White Economic Consulting (moderator).
In a number of antitrust cases–including notable recent decisions in LCDs, DRAM, andAMD v. Intel–courts have limited private remedies available under U.S. law in rulings citing the Foreign Trade Antitrust Improvement Act (FTAIA) of 1982.
Critics claim that such decisions deny full compensation to victims, allow violators to retain illegal gains, and dilute the threat of treble-damage remedies. Proponents argue that international comity requires limits to U.S. civil actions and that higher U.S. civil penalties discourage self-reporting of antitrust violations and cooperation with authorities. We will explore the following questions:
- Are U.S. courts striking the right balance?
- If the status quo continues, what are the implications for antitrust law enforcement in the United States and abroad?
- Should Congress act to amend the FTAIA and, if so, how?
Click here for Charles Miller′s presentation.
“Market Power, Market Definition, and the Merger Guidelines”
Louis Kaplow, Finn M.W. Caspersen and Household International Professor of Law and Economics; Associate Director, John M. Olin Center for Law, Economics, and Business, Harvard Law School
Date, location, and timeline
Monday, June 6, 2011
Ronald Reagan Building
1300 Pennsylvania Avenue NW
Washington, DC 20004
Horizontal Merger Guidelines panel
Dinner and keynote address
Registration is complementary. To attend, please email Claudine Roshanian or call her at 202.216.1801.