Worlds Colliding: Competition Policy and Business Combination Transactions in Bankruptcy
Indiana University Robert H. McKinney School of Law
July 30, 2014
Indiana University Robert H. McKinney School of Law Research Paper No. 2013-17
Business bankruptcies commonly involve asset sales and mergers, treated here under the term “business combination transactions.” Those business combination transactions may present antitrust concerns, because they “tend to create a monopoly” in the affected marketplace. This paper’s contribution is to study the unexplored tension between bankruptcy law, which favors business combination transactions as value-maximizing propositions, and antitrust law, which disfavors combinations leading to excessive concentrations of economic power in a given marketplace. The tension is substantial and manifests both as a matter of substantive law and as a matter of procedures used to implement that law. This paper reveals conflicts between bankruptcy and antitrust and argues that the optimal resolution of those conflicts will favor antitrust goals, which under the current scheme are too frequently subordinated to bankruptcy policies. It then offers several suggestions for possible reform.
Number of Pages in PDF File: 80
Date posted: March 16, 2012 ; Last revised: August 1, 2014
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