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United States Federal Antitrust Merger Solutions, Not Remedies - Chapter 18 - International Antitrust Law & Policy: Fordham Corporate Law 2004
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International Antitrust Law & Policy: Fordham Corporate Law 2004 - Hardcover International Antitrust Law & Policy: Fordham Corporate Law 2004 - PDF ___________________________________________________________________________________ Preview Page Chapter 18
UNITED STATES FEDERAL ANTITRUST
MERGER “SOLUTIONS,” NOT “REMEDIES”
James R. Loftis, III and Danielle K. Moskowitz†
I. INTRODUCTION
In the United States, at the federal level, merger reviews are
conducted by the Federal Trade Commission and the United States
Department of Justice Antitrust Division. Both agencies are empowered to
seek temporary restraining orders, and preliminary and permanent federal
court injunctions preventing mergers from being consummated, orders
requiring various forms of structural and behavioral relief as a condition to
consummation of a transaction; and, for consummated transactions, orders
requiring post-merger relief, including rescission.1 This paper focuses on
current issues involved in the negotiation of consent decrees, which are
often the goal of strategic mergers from the outset.2
Consent decrees are often a desirable goal because the proponents of
many strategic mergers that appear to the DOJ or FTC to present
anticompetitive issues are not willing to force a court test of whether that
appearance is reality. There is a relentless pressure from the financial
markets to clear the antitrust review process and “get the deal done.” A
delay of months to achieve an uncertain litigation outcome is intolerable.
Hence, there ensues an often urgent negotiation which need not be but
loosely tethered to analytical reality. Other largely administrative
considerations can become paramount. They should not be. Careful
analysis will, at once, define the problem and shape its solution quickly.
Any burdens of administration should be subordinate to “getting it right.”
And, “getting it right” need not take a long time.
About the Editor:
Barry Hawk, Director, Fordham Corporate Law Institute; Professor of Law, Fordham University and Partner, Skadden Arps Slate Meagher & Flom (New York and Brussels)
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