Vertical Merger Enforcement: How to Effectively Navigate Through the Uncharted Waters of Complexities
Vertical mergers proliferate in many markets with the promise of increasing business synergies to create more efficient operations. For the most part, U.S. antitrust agencies – the Department of Justice (DOJ) and the Federal Trade Commission, offered little resistance based on “Chicago school” economic theories suggesting that vertical mergers raise few competitive concerns. Some antitrust enforcers are now pushing back against this engrained analytical framework, suggesting that vertical integration can result in anticompetitive consequences and should be scrutinized more closely. The agencies have responded by holding a series of public hearings and challenging for the first time in 40 years a vertical transaction – albeit unsuccessfully.
The growing debate about the appropriate metric to apply to vertical integration makes it imperative for legal counsel and business people companies to understand the latest enforcement developments appropriately counsel clients and avoid the emerging risk and pitfalls that vertical transactions likely will confront.
In this LIVE Webcast, a seasoned panel of thought leaders and professionals brought together by The Knowledge Group will present to the audience an in-depth analysis of the fundamentals as well as recent developments in vertical merger enforcement. Speakers will also present best practices and strategies to effectively address the important issues surrounding this significant topic.
Some of the major topics that will be covered in this course are:
- Vertical Merger Enforcement – Latest Trends and Developments
- Recent Enforcement Actions
- Notable Court Rulings
- Practical Tips and Strategies
- What Lies Ahead
Matrix Economics, LLP
- The economics of vertical merger reviews: Efficiencies and theories of harm that the Agencies evaluate
- Empirical strategies for proving a vertical merger case—what worked and what didn’t work—with a discussion of: (a) AT&T-Time Warner; (b) Staples-Essendant; and (c) CVS-Aetna
- Tips for practitioners on assessing the antitrust risk of a prospective vertical deal, including how to evaluate: (a) demand substitution for upstream inputs; (b) concerns about upstream and downstream foreclosure; and (c) the likelihood of downstream entry
- FTC Commissioners’ ongoing policy dialogue over the appropriate enforcement approaches to vertical mergers (Staples/Essendant; Fresenius/NxStage; UnitedHealth Group/DaVita)
- Appropriate remedies in vertical merger cases post-AT&T/Time Warner – are behavioral remedies appropriate or sufficient?
- Should district courts under the Tunney Act be able to second-guess the DOJ’s decision not to seek relief on the vertical aspects of a mixed horizontal and vertical merger, such as in CVS/Aetna?
Lewis Brisbois Bisgaard & Smith LLP
- Renewed interest in vertical aspects of deals reflects unease with growth through acquisition of companies like Google, Facebook, Amazon, etc.
- Impact of AT&T/TW on DOJ/FTC bringing cases in the future.
- Internal struggle within FTC. Competing statements accompanying recent enforcement actions
- Behavioral remedies: Moving away from steadfast insistence on behavioral remedies as adequate resolution of competition concerns with vertical deals.
What lies Ahead
- retrospective on vertical transactions?
- New Guidelines(?)
- Tech company investigations
- Elimination of double marginalization due to vertical mergers – cannot simply be assumed (as has been the case in the past)
- Role of bargaining theory in merger enforcement, after AT&T/TWX ruling
- Selected observations on Judge Leon’s opinion
Who Should Attend:
- Antitrust Lawyers
- Corporate Lawyers
- Mergers and Acquisitions Lawyers and Consultants
- Business Executives
- Risk and Compliance Officers
Dr. Ryan Booth is a Principal at Matrix Economics. He specializes in applying antitrust economics, econometric methods, and industrial organization principles to evaluate the competitive effects of mergers and challenged conduct. Over the course of numerous litigation and merger investigation matters, Dr. Booth has served as a consulting expert in defining relevant markets, assessing market power, and analyzing competitive effects. His practice spans many industries—including airlines, consumer payment cards, healthcare, high technology, and telecommunications.
Prior to joining Matrix Economics, Dr. Booth was a Vice President at Analysis Group, where he worked on a range of antitrust and competition cases. He received a Ph.D. in Economics from New York University.
Dr. Ryan Booth is a Principal at Matrix Economics. He specializes in applying antitrust economics, econometric methods, and industrial organization …
Jeny Maier has significant experience across all aspects of antitrust law. She regularly advises parties to large M&A transactions on international antitrust notification requirements and substantive competitive issues. She also assists clients with responding to civil and criminal antitrust investigations, and defending related class-action litigation. Jeny also defends clients in high-stakes treble-damage antitrust class action litigation. She works with clients across a broad range of industries, with particular experience in the technology, telecommunications, transportation, healthcare and pharmaceutical fields. Jeny was named a "Future Leader" in competition law by Who's Who Legal in 2017, 2018, and 2019. Additionally, Legal 500 named her a "Bright Rising Star" in the area of antitrust law.
Jeny Maier has significant experience across all aspects of antitrust law. She regularly advises parties to large M&A transactions on …
Katie is the managing partner of the Washington, D.C. office of Lewis Brisbois. With more than 25 years of experience, Katie is a trusted advisor to executives and in-house legal departments who rely on her to successfully navigate antitrust and business issues in a range of industries, including in healthcare. She advises on all manner of provider transactions including the construction and operation of national clinically integrated networks. Katie’s experience includes more than 100 transactions requiring review by the DOJ or FTC. Katie also provides day-to-day business counsel on all manner of antitrust and unfair competition (Lanham Act) litigation, distribution arrangements (including those implicating Robinson-Patman Act), buying and selling groups and global corporate compliance.
Katie is the managing partner of the Washington, D.C. office of Lewis Brisbois. With more than 25 years of experience, …
Nitin Dua specializes in antitrust analysis of mergers and monopolization issues. He has extensive experience leading economic and statistical analyses on several high-profile hospital and insurance merger cases on behalf of federal agencies and private entities. He has supervised economic analyses in major telecom matters, including the merger between AT&T and Time Warner. In addition to healthcare and telecom, Dr. Dua has also worked on engagements involving intellectual property issues in the music industry and antitrust damages in the airlines industry.
Nitin Dua specializes in antitrust analysis of mergers and monopolization issues. He has extensive experience leading economic and statistical analyses …
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Method Of Presentation:
General knowledge of mergers and acquisitions (M&As) transactions
NY Category of CLE Credit:
Areas of Professional Practice
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About Matrix Economics, LLP
Matrix Economics is a boutique consulting firm that provides economic analysis in legal and regulatory proceedings, including antitrust litigation and merger reviews. With over sixty years of collective experience, the Matrix team brings fresh ideas to identify, develop, and implement cutting-edge analytical solutions to complex problems on behalf of law firms, corporations, and government agencies. Matrix experts are hands-on and actively engaged in developing economic insights and supporting evidence. They deliver litigation-proof analyses that appropriately marry quantitative research with the qualitative record to address the central issues of market definition, market power, and competitive effects.
Axinn combines the skills, experience and dedication of the world's largest firms with the focus, responsiveness, efficiency and attention to client needs of the best boutiques. The firm was established in the late 1990s by lawyers from premier Wall Street firms with a common vision: provide the highest level of service and strategic acumen in antitrust, intellectual property and high-stakes litigation. Axinn’s lawyers have served as lead or co-lead counsel on nearly half a trillion dollars in transactions and, in the last 10 years alone, have handled more than 250 litigations.
About Lewis Brisbois Bisgaard & Smith LLP
Lewis Brisbois is the 9th largest firm in the U.S. boasting 1,300 attorneys in 50 cities serving clients of all sizes in every major industry. Founded 40 years ago in Los Angeles the Firm attributes its growth to remaining true to the core principles of client service and diversity. Members of the LBBS antitrust group advise on strategic transactions ranging from middle market to billions of dollars; represent clients in complex litigation; counsel on a variety of issues; and perform compliance audits. In all engagements, efficiency and effectiveness in pursuit of the client’s best interest is paramount.
About Bates White
Bates White is an economic consulting firm that provides advanced, empirically based economic, financial, and econometric analysis to law firms, corporations, and government agencies. We advise clients on litigation, case development and strategy, assessing and analyzing the relative strengths of economic arguments, and determining optimal strategies for discovery, motions, trial preparations, and settlement.