Dale Collins
Georgetown University Law Center
NB: "±" indicates that the hyperlink will take you to another site.
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)
Merger Antitrust Law: Introduction to Substance and Process (class notes)
There is no homeworks assignment for this class
Class 2
Thursday, September 2
TransDigm/Takata (con't)
Calls for reform of merger antitrust law
Merger Antitrust Law: Introduction to Substance and Process (class notes)
Class 2 homework assignment (optional in the first week)
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
U.S. Dep't of Justice & Fed. Trade Comm'n, Horizontal Merger Guidelines (rev. Aug. 19, 2010)
Predicting Merger Antitrust Enforcement Challenges (class notes)
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
The DOJ/FTC Merger Review Process (class notes)
± 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
± 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
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).
Dissenting Statement of Commissioner Noah Joshua Phillips (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
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
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
There are no class notes for this class
Class 7 homework assignment
I encourage you to work in groups on this assignment
YouTube videos
Present value of a perpetuity (perpetual annuity)
Class 8
Thursday, September 23
Antitrust considerations and the merger agreement
The bidding war with Avis
FTC review and settlement
Aftermath
Allocating Antitrust Risk in Merger Agreements
(class notes)
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
Competition Economics Part 1 (class notes)
There are no reading materials for this class
YouTube videos
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
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
Basic Competition Economics Part 2 (class notes)
There are no reading materials for this class
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
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
How to Solve Cournot Problem: Algebra-Based Solution
Bertrand Oligopoly (solving a Bertrand oligopoly problem)
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
Introduction to Formal Horizontal Merger Analysis
(class notes)
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)