Symposium
Last updated on Feb 10, 2020
On January 10, 2020, the DOJ and FTC released their draft 2020 Vertical Merger Guidelines.
“Challenging anticompetitive vertical mergers is essential to vigorous enforcement. The agencies’ vertical merger policy has evolved substantially since the issuance of the 1984 Non-Horizontal Merger Guidelines, and our guidelines should reflect the current enforcement approach. Greater transparency about the complex issues surrounding vertical mergers will benefit the business community, practitioners, and the courts,” said FTC Chairman Joseph J. Simons.
The draft is short, but contentious, as evidenced by Commissioner Slaughter’s dissent and Commissioner Chopra’s abstention. Similarly, as Commissioner Wilson noted in her concurring statement, recent FTC hearings demonstrated that there is a vigorous dispute over what new guidelines should look like (or even if the current Non-Horizontal Guidelines should be updated at all).
Given the importance of this topic, we convened a symposium of legal and economic experts to analyze the guidelines and offer their thoughts on how the FTC and DOJ should best operationalize the three decades of empirical and theoretical learning that has occurred since the 1984 Guidelines were issued.
Participants
- Timothy J. Brennan (Professor, Public Policy and Economics, University of Maryland; former Chief Economist, FCC; former economist, DOJ Antitrust Division)
- Steven Cernak (Partner, Bona Law PC; former antitrust counsel, GM)
- Eric Fruits (Chief Economist, ICLE; Professor of Economics, Portland State University)
- Herbert Hovenkamp (James G. Dinan University Professor of Law, University of Pennsylvania)
- Jonathan M. Jacobson (Partner, Wilson Sonsini Goodrich & Rosati) and Kenneth Edelson (Associate, Wilson Sonsini Goodrich & Rosati)
- William J. Kolasky (Partner, Hughes Hubbard & Reed; former Deputy Assistant Attorney General, DOJ Antitrust Division) and Philip A. Giordano (Partner, Hughes Hubbard & Reed LLP)
- Geoffrey A. Manne (President & Founder, ICLE; Distinguished Fellow, Northwestern University Center on Law, Business, and Economics) and Kristian Stout (Associate Director, ICLE)
- Jonathan E. Nuechterlein (Partner, Sidley Austin LLP; former General Counsel, FTC; former Deputy General Counsel, FCC)
- Sharis A. Pozen (Partner, Clifford Chance; former Vice President of Global Competition Law and Policy, GE; former Acting Assistant Attorney General, DOJ Antitrust Division), Timothy Cornell (Partner, Clifford Chance), Brian Concklin (Counsel, Clifford Chance), and Michael Van Arsdall (Counsel, Clifford Chance)
- Jan Rybnicek (Counsel, Freshfields Bruckhaus Deringer; former attorney adviser to Commissioner Joshua D. Wright, FTC)
- Scott A. Sher (Partner, Wilson Sonsini Goodrich & Rosati) and Matthew McDonald (Associate, Wilson Sonsini Goodrich & Rosati)
- Margaret Slade (Professor Emeritus, Vancouver School of Economics, University of British Columbia)
- Gregory Werden (former Senior Economic Counsel, DOJ Antitrust Division) and Luke M. Froeb (William C. Oehmig Chair in Free Enterprise and Entrepreneurship, Vanderbilt University; former Chief Economist, DOJ Antitrust Division; former Chief Economist, FTC)
- Lawrence J. White (Robert Kavesh Professor of Economics, New York University; former Chief Economist, DOJ Antitrust Division)
- Joshua D. Wright (University Professor of Law, George Mason University; former Commissioner, FTC), Douglas H. Ginsburg (Senior Circuit Judge, US Court of Appeals for the DC Circuit; Professor of Law, George Mason University; former Assistant Attorney General, DOJ Antitrust Division), Tad Lipsky (Assistant Professor of Law, George Mason University; former Acting Director, FTC Bureau of Competition; former chief antitrust counsel, Coca-Cola; former Deputy Assistant Attorney General, DOJ Antitrust Division), and John M. Yun (Associate Professor of Law, George Mason University; former Acting Deputy Assistant Director, FTC Bureau of Economics)
In This Symposium
Announcing the TOTM Symposium on the 2020 Draft Joint Vertical Merger Guidelines
Truth on the Market is pleased to announce its next blog symposium: The 2020 Draft Joint Vertical Merger Guidelines: What’s in, what’s out — and do we need them anyway? February 6 & 7, 2020 Symposium background On January 10, 2020, the DOJ Antitrust Division and the Federal Trade Commission released Draft Joint Vertical Merger ... Announcing the TOTM Symposium on the 2020 Draft Joint Vertical Merger Guidelines
Welcome to the TOTM Blog Symposium on the 2020 Draft Joint Vertical Merger Guidelines
The 2020 Draft Joint Vertical Merger Guidelines: What’s in, what’s out — and do we need them anyway? February 6 & 7, 2020 Welcome! We’re delighted to kick off our two-day blog symposium on the recently released Draft Joint Vertical Merger Guidelines from the DOJ Antitrust Division and the Federal Trade Commission. If adopted by ... Welcome to the TOTM Blog Symposium on the 2020 Draft Joint Vertical Merger Guidelines
Hovenkamp: The Draft Vertical Merger Guidelines Are an Important Step for the Economic Analysis of Mergers
In its 2019 AT&T/Time-Warner merger decision the D.C. Circuit Court of Appeals mentioned something that antitrust enforcers have known for years: We need a new set of Agency Guidelines for vertical mergers. The vertical merger Guidelines were last revised in 1984 at the height of Chicago School hostility toward harsh antitrust treatment of vertical restraints. ... Hovenkamp: The Draft Vertical Merger Guidelines Are an Important Step for the Economic Analysis of Mergers
Nuechterlein: Guidelines without Guidance on Vertical Mergers
[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here. This post is authored by Jonathan E. Nuechterlein (Partner, Sidley Austin LLP; former General Counsel, FTC; former Deputy General Counsel, FCC).] [Nuechterlein: I represented AT&T in United States ... Nuechterlein: Guidelines without Guidance on Vertical Mergers
Kolasky: The DOJ and FTC Should Revise Their Proposed Vertical Merger Guidelines to Emulate the EU’s
On January 10, the Department of Justice (DOJ) withdrew the 1984 DOJ Non-Horizontal Merger Guidelines, and, together with the Federal Trade Commission (FTC), released new draft 2020 Vertical Merger Guidelines (“DOJ/FTC draft guidelines”) on which it seeks public comment by February 26.[1] In announcing these new draft guidelines, Makan Delrahim, the Assistant Attorney General for ... Kolasky: The DOJ and FTC Should Revise Their Proposed Vertical Merger Guidelines to Emulate the EU’s
Slade: The Draft Vertical Merger Guidelines Are a Step in the Right Direction, But Uneven on Critical Issues
[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here. This post is authored by Margaret E. Slade (Professor Emeritus, Vancouver School of Economics, The University of British Columbia).] A revision of the DOJ’s Non-Horizontal Merger Guidelines is ... Slade: The Draft Vertical Merger Guidelines Are a Step in the Right Direction, But Uneven on Critical Issues
Wright, Ginsburg, Lipsky and Yun: Connecting Vertical Merger Guidelines to Sound Economics
After much anticipation, the Department of Justice Antitrust Division and the Federal Trade Commission released a draft of the Vertical Merger Guidelines (VMGs) on January 10, 2020. The Global Antitrust Institute (GAI) will be submitting formal comments to the agencies regarding the VMGs and this post summarizes our main points. The Draft VMGs supersede the ... Wright, Ginsburg, Lipsky and Yun: Connecting Vertical Merger Guidelines to Sound Economics
Werden and Froeb: The Conspicuous Silences of the Proposed Vertical Merger Guidelines
The proposed Vertical Merger Guidelines provide little practical guidance, especially on the key issue of what would lead one of the Agencies to determine that it will not challenge a vertical merger. Although they list the theories on which the Agencies focus and factors the Agencies “may consider,” the proposed Guidelines do not set out ... Werden and Froeb: The Conspicuous Silences of the Proposed Vertical Merger Guidelines
Brennan: Guidance on Enforcement Against “Pure” Vertical Mergers: It’s Complicated
[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here.] This post is authored by Timothy J. Brennan (Professor, Public Policy and Economics, University of Maryland; former Chief Economist, FCC; former economist, DOJ Antitrust Division).] The DOJ Antitrust ... Brennan: Guidance on Enforcement Against “Pure” Vertical Mergers: It’s Complicated
Cernak: Who Bears the Burden on Elimination of Double Marginalization in the Draft Vertical Merger Guidelines?
[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here. This post is authored by Steven J. Cernak (Partner, Bona Law; Adjunct Professor, University of Michigan Law School and Western Michigan University Thomas M. Cooley Law School; former ... Cernak: Who Bears the Burden on Elimination of Double Marginalization in the Draft Vertical Merger Guidelines?
Fruits: Messy Mergers and Muddled Guidelines (Or, “Orange You Glad I Didn’t Say Banana?”)
[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here. This post is authored by Eric Fruits (Chief Economist, International Center for Law & Economics and Professor of Economics, Portland State University).] Vertical mergers are messy. They’re messy ... Fruits: Messy Mergers and Muddled Guidelines (Or, “Orange You Glad I Didn’t Say Banana?”)
Pozen: The Missed Opportunity for International Harmonization in the Draft Vertical Merger Guidelines
[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here. This post is authored by Sharis Pozen (Partner, Clifford Chance; former Vice President of Global Competition Law and Policy, GE; former Acting Assistant Attorney General, DOJ Antitrust Division); ... Pozen: The Missed Opportunity for International Harmonization in the Draft Vertical Merger Guidelines
Sher: Implications of the Draft Vertical Merger Guidelines for Vertical Mergers Involving Technology Start-Ups
[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here. This post is authored by Scott Sher (Partner, Wilson Sonsini Goodrich & Rosati) and Matthew McDonald (Associate, Wilson Sonsini Goodrich & Rosati).] On January 10, 2020, the United ... Sher: Implications of the Draft Vertical Merger Guidelines for Vertical Mergers Involving Technology Start-Ups
Rybnicek: The Draft Vertical Merger Guidelines Would Do More Harm Than Good
In an area where it may seem that agreement is rare, there is near universal agreement on the benefits of withdrawing the DOJ’s 1984 Non-Horizontal Merger Guidelines. The 1984 Guidelines do not reflect current agency thinking on vertical mergers and are not relied upon by businesses or practitioners to anticipate how the agencies may review ... Rybnicek: The Draft Vertical Merger Guidelines Would Do More Harm Than Good
White: The Missing Market Definition Standard in the Draft Vertical Guidelines
[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here. This post is authored by Lawrence J. White (Robert Kavesh Professor of Economics, New York University; former Chief Economist, DOJ Antitrust Division).] The DOJ/FTC Draft Vertical Merger Guidelines ... White: The Missing Market Definition Standard in the Draft Vertical Guidelines
Manne & Stout 1: The Illogic of a Contract/Merger Equivalency Assumption in the Assessment of Vertical Mergers
[TOTM: The following is part of a symposium by TOTM guests and authors on the 2020 Vertical Merger Guidelines. The entire series of posts is available here. This post is authored by Geoffrey A. Manne (President & Founder, ICLE; Distinguished Fellow, Northwestern University Center on Law, Business, and Economics ); and Kristian Stout (Associate Director, ... Manne & Stout 1: The Illogic of a Contract/Merger Equivalency Assumption in the Assessment of Vertical Mergers
Manne & Stout 2: Against Incorporating a Contract/Merger Equivalency Assumption in Vertical Merger Guidelines
In our first post, we discussed the weaknesses of an important theoretical underpinning of efforts to expand vertical merger enforcement (including, possibly, the proposed guidelines): the contract/merger equivalency assumption. In this post we discuss the implications of that assumption and some of the errors it leads to — including some incorporated into the proposed guidelines. ... Manne & Stout 2: Against Incorporating a Contract/Merger Equivalency Assumption in Vertical Merger Guidelines
Symposium Wrap Up: The 2020 Draft Joint Vertical Merger Guidelines: What’s in, what’s out — and do we need them anyway?
Last Thursday and Friday, Truth on the Market hosted a symposium analyzing the Draft Vertical Merger Guidelines from the FTC and DOJ. The relatively short draft guidelines provided ample opportunity for discussion, as evidenced by the stellar roster of authors thoughtfully weighing in on the topic. We want to thank all of the participants for their ... Symposium Wrap Up: The 2020 Draft Joint Vertical Merger Guidelines: What’s in, what’s out — and do we need them anyway?
Will Montesquieu Rescue Antitrust?
In an age of antitrust populism on both ends of the political spectrum, federal and state regulators face considerable pressure to deploy the antitrust laws against firms that have dominant market shares. Yet federal case law makes clear that merely winning the race for a market is an insufficient basis for antitrust liability. Rather, any ... Will Montesquieu Rescue Antitrust?