Antitrust in Theory and Practice: Mergers & Acquisitions

Benjamin N. Cardozo School of Law

Spring 2006

Hanno F. Kaiser


1, 2
The anatomy of a merger. Why do companies merge? Why do so many mergers fail? The core questions of antitrust law: coordination and exclusion. (Case studies: Boeing McDonnell Douglas, AOL/Time Warner).
Ch. 1, Ch. 5(A)
Horizontal merger analysis. Emergence of the structural presumption doctrine. (Brown Shoe, Philadelphia National Bank)
Ch. 5(B)(1-2)
The sea change in the 1970s and the slience of the Supreme Court. Erosion of the structural presumption. From categories to concepts. (General Dynamics and Baker Hughes).
Ch. 5(B)(3)
5, 6
Merger analysis under the DOJ/FTC Merger Guidelines. Structure of the guidelines. Market definition. HHI analysis in theory and practice.
Ch. 5(C)(1)
7, 8
Merger Guidelines: Coordinated and unilateral effects; entry and efficiencies. Client interviews and merger risk assessment in practice (or why no one ever really defines relevant markets).
Ch. 5(C)(2-4)
Basics of the Hart-Scott-Rodino Act. Merger notification, gun jumping, integration management, and avoiding being fired (by your client and/or your firm).
Blumenthal on gun jumping and integration
10, 11
U.S. v. Oracle (2004). Unilateral effects in differentiated product markets. Critical loss analysis. Econometric tools. Dealing with experts. How to try an antitrust case.
Various real-world exhibits
12, 13
FTC v. Arch Coal (2004). The state of coordinated effects analysis. Evidence in antitrust cases, or "hot documents and cold economics." Pitfalls in dealing with the DOJ/FTC and a roadmap for client communications.
Williamson & Manne on evidence
Putting it all together: Drafting risk-shifting provisions in merger agreements; anticipating divestitures and consent decrees. Review of core concepts.
Various real-world merger agreements

Textbook: A. Gavil, W. Kovacic, and J. Baker, Antitrust Law in Perspective: Cases, Concepts and Problems in Competition Policy, West (2002). (This is by far the best contemporary textbook on antitrust in general.)