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)
Series Posts
- The Draft Vertical Merger Guidelines Are an Important Step for the Economic Analysis of Mergers (Hovenkamp)
- Guidelines without Guidance on Vertical Mergers (Nuechterlein)
- The DOJ and FTC Should Revise Their Proposed Vertical Merger Guidelines to Emulate the EU’s (Kolasky & Giordano)
- The Draft Vertical Merger Guidelines Are a Step in the Right Direction, But Uneven on Critical Issues (Slade)
- Connecting Vertical Merger Guidelines to Sound Economics (Wright, Ginsburg, Lipsky and Yun)
- The Conspicuous Silences of the Proposed Vertical Merger Guidelines (Werden & Froeb)
- Vertical Mergers 2020 — A Missed Opportunity to Clarify Merger Analysis (Jacobson & Edelson)
- Guidance on Enforcement Against “Pure” Vertical Mergers: It’s Complicated (Brennan)
- Who Bears the Burden on Elimination of Double Marginalization in the Draft Vertical Merger Guidelines? (Cernak)
- Messy Mergers and Muddled Guidelines (Or, “Orange You Glad I Didn’t Say Banana?”) (Fruits)
- The Missed Opportunity for International Harmonization in the Draft Vertical Merger Guidelines (Pozen, Cornell, Concklin, & Van Arsdall)
- Implications of the Draft Vertical Merger Guidelines for Vertical Mergers Involving Technology Start-Ups (Sher & McDonald)
- The Draft Vertical Merger Guidelines Would Do More Harm Than Good (Rybnicek)
- The Missing Market Definition Standard in the Draft Vertical Guidelines (White)
- The Illogic of a Contract/Merger Equivalency Assumption in the Assessment of Vertical Mergers (Manne & Stout)
- Against Incorporating a Contract/Merger Equivalency Assumption in Vertical Merger Guidelines (Manne & Stout)