Merger Antitrust Law (2021)

Dale Collins
Georgetown University Law Center

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This page contains the memorandum introducing the course, class schedule, reading materials, and class notes for the Merger Antitrust Law course taught during the 2021 fall semester at Georgetown. It also contains links to related supplemental materials on the Applied Antitrust web site. There is no textbook for this course. Everything you need will be linked to this page.

Memorandum introducing the course

Class schedule 2.0 (September 5, 2021)

 
 
Required Reading
Comments and Optional Reading

Unit 1

Merger Antitrust Law: TransDigm/Takata

Unit 1 class slides (Classes 1 and 2)

Class 1

Tuesday, August 31

Introduction
TransDigm/Takata

Memorandum introducing the course

Class schedule 2.0 (Sept. 5, 2021)

Class 1 reading guidance

Unit 1 reading materials

Merger Antitrust Law: Introduction to Substance and Process (class notes)

There is no homeworks assignment for this class

Note on Antitrust Hornbooks and Other Study Aids

Class 2

Thursday, September 2

TransDigm/Takata (con't)

Calls for reform of merger antitrust law

Class 2 reading guidance

Unit 1 reading materials

Merger Antitrust Law: Introduction to Substance and Process (class notes)

Class 2 homework assignment (optional in the first week)

Instructor's answer

FTC video of July 1, 2021, open meeting (excerpts of Section 5 Policy Statement discussion)
NB: This is a very large file that needs to be downloaded before it can be played. Alternatively, go to the complete streaming version on the FTC web page, listen to the introduction up to the first issue and then skip to around 43:20

Demand curves and consumer surplus (YouTube videos):

Marginal Revolution University, The Demand Curve

Marginal Revolution University, A Deeper Look at the Demand Curve

Marginal Revolution University, What Is Deadweight Loss?

 

Dale Collins, Antitrust on the Brink: The Calls for Radical Reform, Presentation to the Antitrust Law Association (Sept. 16, 2021) (slides)

Unit 2

Predicting Merger Antitrust Enforcement Challenges

Unit 2 class slides (Class 3)

Class 3

Tuesday, September 7

Predicting merger antitrust enforcement challenges
DOJ/FTC 2010 Horizontal Merger Guidelines

Class 3 reading guidance

Unit 2 reading materials

U.S. Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines (rev. Aug. 19, 2010)

Predicting Merger Antitrust Enforcement Challenges (class notes)

Class 3 homework assignment

See Unit 2 class sides for instructor's answer

Evolution of the Merger Guidelines

 

Unit 3

The DOJ/FTC Merger Review Process

Unit 3 class slides (Class 4 and first part of Class 5)

Class 4

Thursday, September 9

Class 4 reading guidance

Unit 3 reading materials

The DOJ/FTC Merger Review Process (class notes)

Class 4 homework assignment

Instructor's answer

 

 

Premerger notification

± Hart-Scott-Rodino Act, Clayton Act § 7A, 18 U.S.C. § 18a (Premerger notification and waiting period)

± HSR Form (ver. 1.0.2) (updated Aug. 4, 2017)

± HSR form instructions (Sept. 25, 2019)

Note: These forms may not display on some browsers. If you do not get the proper forms, please hit the "download" button on your browser and view the download on Adobe Acrobat Viewer (or just search for the forms using your favorite search engine).

S. 228: Merger Filing Fee Modernization Act of 2021 (updated August 31, 2021: On May 13, 2021, the Senate Judiciary unanimously approved the bill without amendment and reported it to the floor. Subsequently, the bill was incorporated as Section 6202 of the United States Innovation and Competition Act of 2021, S. 1260, 117th Cong. (passed Senate June 8, 2021))

Second request investigations

DOJ Model Second Request (Nov. 28, 2016)

FTC Model Second Request (Apr. 2019)

Other supplemental materials

± FTC Merger Review web page

± DOJ Merger Enforcement web page

± DOJ and FTC, Annual Report to Congress for Fiscal Year 2019 (July 2020) (latest published report)

Makan Delrahim, It Takes Two:Modernizing the Merger Review Process, Prepared Remarks Before the 2018 Global Antitrust Enforcement Symposium, Washington, DC (Sept. 25, 2018)

Case study for homework assignment

Albertsons/Safeway case study (complete)
NB: There is no need for you to look at this case study in order to do the homework. It is here only if you have some interest in learning more about the transaction.

Unit 4

Merger Antitrust Settlements

Unit 4 class slides (for Class 5)

For additional supplemental materials, see13. DOJ/FTC Merger Review and Settlement Procedures in AppliedAntitrust.com

Class 5

Tuesday, September 14

Settlements

 

Class 5 reading guidance

Unit 4 reading materials

Unit 4. Merger Antitrust Settlements (class notes)

There is no homework assignment for this class

 

Albertsons/Safeway case study (complete)
TransDigm/Takata case study (complete)

Agency materials: DOJ

Makan Delrahim,Ass't Att'y Gen., U.S. Dep't of Justice, Antitrust Div., Improving the Antitrust Consensus, Prepared Remarks Before the New York State Bar Association Antitrust Section, New York, NY (Jan. 25, 2018)

U.S. Dep't of Justice, Antitrust Div., Antitrust Division Manual Ch. 4 D: Negotiating and Entering Consent Decrees (5th ed. updated Mar. 2014)

U.S. Dep't of Justice, Antitrust Div., Antitrust Division Policy Guide to Merger Remedies (rev. June 2011) (news release)

Agency materials: FTC

Fed. Trade Comm’n, Bureau of Competition, Negotiating Merger Remedies (Jan. 2012)

Fed. Trade Comm'n, The FTC’s Merger Remedies 2006-2012: A Report of the Bureaus of Competition and Economics (Jan. 2017) (FTC news release)

Dan Ducore & Naomi Licker, Bureau of Competition, Fed. Trade Comm'n, Looking Back (Again) at FTC Merger Remedies (Feb. 3, 2017)

Fed. Trade Comm'n, Bureau of Competition, Frequently Asked Questions About Merger Consent Order Provisions (downloaded August 8, 2019)

Deborah L. Feinstein, Dir., Bureau of Competition, Fed. Trade Comm'n, The Significance of Consent Orders in the Federal Trade Commission’s Competition Enforcement Efforts (Sept. 17, 2013)

Withdrawal of FTC 1995 Policy Statement on Prior Approvals

Press Release, Fed. Trade Comm’n, FTC Acts To Reduce Prior-Approval Burden on Companies in Merger Cases (June 22, 1995)

Fed. Trade Comm'n, Notice and Request for Comment Regarding Statement of Policy Concerning Prior Approval and Prior Notice Provisions in Merger Cases, 60 Fed. Reg. 39745 (Aug. 3, 1995).

Press Release, Fed. Trade Comm’n, FTC Rescinds 1995 Policy Statement that Limited the Agency’s Ability to Deter Problematic Mergers (July 21, 2021).

Remarks of Chair Lina M. Khan Regarding the Proposed Rescission of the 1995 Policy Statement Concerning Prior Approval and Prior Notice Provisions (July 21, 2021)

Prepared Remarks of Commissioner Rohit Chopra Regarding the Motion to Rescind the Commission’s 1995 Policy Statement on Prior Approval and Prior Notice (July 21, 2021)

Dissenting Statement of Commissioner Noah Joshua Phillips (July 21, 2021)

Oral Remarks of Commissioner Christine S. Wilson: Care Labeling Rule Proposed Policy Statement on Repair Restrictions Imposed by Manufacturers and Sellers Policy Statement on Prior Approval and Prior Notice Provisions in Merger Cases (July 21, 2021)

Other materials

Jonathan M. Jacobson, Issues in Antitrust Consent Decrees, Presented to the Department of Justice Antitrust Division (Apr. 26, 2018)

Unit 5

Merger Antitrust Litigation

Unit 5 class slides (for class 6)

For additional supplemental materials, see 14. Merger Antitrust Litigationin AppliedAntitrust.com

Class 6

Thursday, September 16

Settlements

 

Class 6 reading guidance

Unit 5 reading materials

Unit 5. Merger Antitrust Litigation (class notes)

There is no homework assignment for this class

 

The Course of Litigation: EnergySolutions’ Acquisition of Waste Control Specialists (Nov. 16, 2016)

Unit 6

Hertz/Avis Budget/Dollar Thrifty

Unit 6 class slides

For additional supplemental materials, see 13. DOJ/FTC Merger Review and Settlement Procedures in AppliedAntitrust.com

Class 7

Tuesday, September 21

The 2010 Hertz/Dollar Thrifty deal

 

Class 7 reading guidance

Unit 6 reading materials

There are no class notes for this class

Class 7 homework assignment
I encourage you to work in groups on this assignment

Instructor's answer

 

YouTube videos

Present value

Present value of an annuity

Present value of a perpetuity (perpetual annuity)

Weighted average cost of capital (WACC)

Auction Theory: Winner's Curse

Class 8

Thursday, September 23

Antitrust considerations and the merger agreement

The bidding war with Avis
FTC review and settlement
Aftermath

Class 8 reading guidance

Unit 6 reading materials

Allocating Antitrust Risk in Merger Agreements
(class notes)

Class 8 homework assignment

Instructor's answer

 

Risk-Shifting in Hertz/Dollar Thrifty (optional class notes)

For a collection of antitrust-related provisions appearing in merger agreements, see Dale Collins, Sample Antitrust-Related Provisions in M&A Agreements, AntitrustUnpacked.com (July 2, 2018)

See Hertz/Avis Budget/Dollar Thrifty: The Bidding War for a collection on SEC materials and press releases on the bidding war for Dollar Thrifty between Hertz and Avis Budget.

 

Anthem/Cigna contract litigation

In re Anthem-Cigna Merger Litig., No. CV 2017-0114-JTL, 2020 WL 5106556 (Del. Ch. Aug. 31, 2020) (unpublished), judgment entered, (Del. Ch. 2020), summarily aff'd sub nom. Cigna Corp. v. Anthem, Inc., 251 A.3d 1015 (Del. 2021) (unpublished)

Unit 7

Competition Economics


Class 9

Tuesday, September 28

Part 1. Demand, Costs, and
Profit-Maximization

 

Class 9 reading guidance

Competition Economics Part 1 (class notes)

There are no reading materials for this class

Class 9 homework assignment

YouTube videos

Costs, Revenue and Profits

Revenue, Costs and Profit Part 1

Revenue, Costs and Profit Part 2

Revenue, Costs and Profit Part 3

Marginal Revolution University, The Demand Curve

Marginal Revolution University, A Deeper Look at the Demand Curve

Marginal Revolution University, The Demand Curve Shifts

From Demand to Inverse Demand

Marginal Revenue for a Monopolist Facing Linear Demand

Finding a Revenue Function from a Linear Demand Function

Marginal Revolution University, The Supply Curve

Marginal Revolution University, A Deeper Look at the Supply Curve

Marginal Revolution University, The Supply Curve Shifts

Marginal Revolution University, The Equilibrium Price and Quantity

Marginal Revolution University, Exploring Equilibrium

Marginal Revolution University. Maximizing Profit Under Competition

Dennis W. Carlton & Jeffrey M. Perloff, Modern Industrial Organization (4th ed. 2005).

A Marginal Revenue Problem Step-by-Step (by Step)

A Profit-Maximization Problem Step-by-Step (by Step)

See also Dave Berry, Up in the Air on the Question of Gravity, Baltimore Sun, Mar. 16, 1997, at 3J

 

Completely optional: If you want to understand derivatives and would like a quick introduction, see the following two YouTube videos:

Derivatives... What? (on the theory of derivatives)

Derivatives... How? (on calculating the derivative--first 6.5 minutes is sufficient)

Class 10

Thursday, September 30

Part 2. Markets and Market Equilibrium

 

Class 10 reading guidance

Basic Competition Economics Part 2 (class notes)

There are no reading materials for this class

Class 10 homework assignment

 

 

YouTube videos

How Substitutes and Complements Affect Demand

Marginal Revolution University, Elasticity of Demand

Marginal Revolution University, Calculating Elasticity of Demand

Marginal Revolution University, Elasticity and its Applications

Cross elasticity of demand

Diversion ratios

Marginal Revolution University, Calculating the Elasticity of Demand

Intuition for Monopoly and Elasticity

Marginal Revolution University, The Equilibrium Price and Quantity

Marginal Revolution University, Exploring Equilibrium

Marginal Revolution University, Introduction to the Competitive Firm

Marginal Revolution University, Maximizing Profit Under Competition

Monopoly Basics

The Monopoly Markup

Cournot Competition

Cournot oligopoly

How to Solve Cournot Problem: Algebra-Based Solution

Bertrand Competition

Bertrand Oligopoly (solving a Bertrand oligopoly problem)

Cournot versus Bertrand Basics

 

Friday, October 1

Optional economics review session

 

Unit 8

Sanford Health/Mid Dakota Clinic

 

Class 11

Tuesday, October 5

Analysis of the Eight Circuit's opinion

Institutional setting

The prima facie case

Relevant product markets

Relevant geographic markets

The PNB presumption

 

Class 11 reading guidance

Unit 8 reading materials

Introduction to Formal Horizontal Merger Analysis
(class notes)

Class 11 homework assignment

Memorandum of Decision, Findings of Fact, Conclusions of Law, and Order, FTC v. Sanford Health, No. 1:17-cv-00133-ARS (D.N.D. Dec. 15, 2017) (district court's memorandum supporting the entry of the preliminary injunction)

U.S. Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines (rev. Aug. 19, 2010)

Evolution of the Merger Guidelines

YouTube videos

David Evans, Hypothetical Monopoly Test (SSNIP)

Superseded Merger Guidelines

U.S. Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines (Apr. 8, 1997)

U.S. Dep't of Justice, Merger Guidelines (June 14, 1984) (published at 49 Fed. Reg. 26,823)

U.S. Dep't of Justice, Merger Guidelines (June 14, 1982) (published at 47 Fed. Reg. 28,493)

Fed. Trade Comm'n, Statement Concerning Horizontal Merger Guidelines (June 14, 1982)

U.S. Dep't of Justice, Merger Guidelines (May 30, 1968)

Note 1: The 1968, 1982, 1984 (except for Section 4), 1992, and 1997 Merger Guidelines have been superseded by the 2010 Merger Guidelines.

Note 2: Section 4 of the 1984 Merger Guidelines, which addresses nonhorizontal mergers, was superseded by the 2020 Vertical Merger Guidelines (June 30, 2020). On September `15, 2021, the FTC withdrew from the 2020 Vertical Merger Guidelines. See News Release, Fed. Trade Comm'n, Federal Trade Commission Withdraws Vertical Merger Guidelines and Commentary (Sept. 15, 2021). The DOJ did not withdraw, although it raised some questions about the VMGs and said it would work witht he FTC on revisions. See News Release, U.S. Dep't of Justice, Justice Department Issues Statement on the Vertical Merger Guidelines (Sept. 15, 2021)

.

The Seminal Cases of the 1960s

  The common law approach to antitrust law 1
  United States v. E.I. du Pont de Nemours & Co. (1957) 4
  Brown Shoe Co. v. United States (1962 12
  United States v. Philadelphia National Bank (1963) 28
  United States v. Aluminum Co. of America (Rome Cable) (1964) 33
  United States v. Von’s Grocery Co. (1966) 36
  United States v. Pabst Brewing Co. (1966) 40
  United States v. General Dynamics Corp. (1974) 44

Class 12

Thursday, October 7

Analysis of the Eight Circuit's opinion

Defenses

Power buyers defense

Entry defense

Efficiencies defense

Failing firm

Class 12 reading guidance

Unit 8 reading materials

Introduction to Formal Horizontal Merger Analysis

Class 12 homework assignment

 

 

Tuesday, October 12

Legislative Monday

NO CLASS

 

Unit 9

H&R Block/TaxACT

 


Class 13

Tuesday, October 14

Analysis of the district court opinion

Institutional setting

Market definition: (Brown Shoe factors

 

 

Class 14

Tuesday, October 19

Analysis of the district court opinion

Market definition

 

 

Class 15

Thursday, October 21

Analysis of the district court opinion

PNB presumption

Ease of entry defense

Coordinated effects

Elimination of a "maverick"

 

 

 

Class 16

Tuesday, October 26

Analysis of the district court opinion

Unilateral effects

Efficiencies defense

 

 

 

Unit 10

Sysco/U.S. Foods

 

 

Class 17

Thursday, October 28

Analysis of the district court opinion

Targeted customers

Second price auction theory of unilateral effects

Power buyer defense

 

 

 

Unit 11

Case Study Problem: Ice Cream Merger

 

Class 18

Tuesday, November 2

Analysis of Class 17 homework assignment

 

Unit 12

Staples/Office Depot

 

Class 19

Thursday, November 4

Analysis of the district court opinion

 

 
 

Friday, November 5

Anticompetitive effects

Downward-pricing pressure defenses

OPTIONAL review session

 

Unit 13

Short Horizontal Cases

 

 

Class 20

Tuesday, November 9

Analysis of short case studies

ABI/Group Modelo

Energy Solutions/Waste Control Specialists

Heinz/Beech-Nut

SGI/Alias/Wavefront

Sirius/XM

Boston Scientific/CVIS

Dollar General/Dollar Tree/Family Dollar

 

 

Unit 14

Potential Competition Mergers

 

Class 21

Thursday, November 11

Mylan/Perrigo

Medtronic/Covidien

Mallinckrodt (Questcor)/Novartis)

Steris/Synergy Health

Nielsen/Arbitron

Akron/VersaPharm

 

 

Unit 15

Vertical Mergers

 

 

Class 22

Tuesday, November 16

Vertical Merger Guidelines

General Electric/Avio

Comcast/NBCUniversal

 

 

2020 DOJ/FTC Vertical Merger Guidelines

U.S. Dep't of Justice & Fed. Trade Comm'n, Vertical Merger Guidelines (June 30, 2020)

Dissenting Statement of Commissioner Rohit Chopra (June 30, 2020)

Dissenting Statement of Commissioner Rebecca Kelly Slaughter (June 30, 2020)

Fed. Trade Comm'n, Commentary on Vertical Merger Enforcement (Dec. 2020)

2021 FTC withdrawal

News Release, Fed. Trade Comm'n, Federal Trade Commission Withdraws Vertical Merger Guidelines and Commentary (Sept. 15, 2021)

Statement of Chair Lina M. Khan, Commissioner Rohit Chopra, and Commissioner Rebecca Kelly Slaughter on the Withdrawal of the Vertical Merger Guidelines (Sept. 15, 2021)

Prepared Remarks of Commissioner Rohit Chopra (Sept. 15, 2021)

Dissenting Statement of Commissioners Noah Joshua Phillips and Christine S. Wilson (Sept. 15, 2021)

Oral Remarks of Commissioner Christine S. Wilson (Sept. 15, 2021)

2021 DOJ response

News Release, U.S. Dep't of Justice, Justice Department Issues Statement on the Vertical Merger Guidelines (Sept. 15, 2021)
NB: The statement does not withdraw the DOJ from the 2020 Vertical Merger Guidelines

Commentary

± Steven C. Salop, A Suggested Revision of the 2020 Vertical Merger Guidelines (May 2, 2021)

Steven C. Salop, Invigorating Vertical Merger Enforcement, 127 Yale L.J. 1962 (2018)

 

Monday, November 16

GRADED HOMEWORK ASSIGNMENT DUE

 

Class 23

Thursday, November 18

Review of Graded Homework Assignment

 

Class 24

Tuesday, November 23

AT&T/Time Warner

 

 

Class 25

Tuesday, November 30

AT&T/Time Warner (con't)

Coca-Cola/Coca-Cola Enterprises

 

 

Unit 16

Sabre/Farelogix

 

 

Class 26

Thursday, December 2

Analysis of the district court opinion

 

 

 

Final Review Session (optional)

 
 

Friday, December 3

 

OPTIONAL review session

 

FINAL EXAM

 

 

 

Tuesday, December 7 (8:30 AM) –
Thursday, December 16 (6:30 PM)
[Times to be confirmed]

5-hour
Open book
Take home

Instructions for the 2020 exam
(I will propose the same instructions for 2021)