A Survey of Evidence Leading to Second Requests at the FTC
Darren S. Tucker
Bingham McCutchen LLP
Antitrust Law Journal , Vol. 78, No. 3, 2013
This study examines the theories of harm and types of evidence associated with in-depth merger investigations at the FTC during a recent four-year period and, based on this examination, offers practical guidance regarding the factors that appear to be most relevant at the initial phase of an FTC merger investigation. In addition, the study examines whether and to what extent the FTC’s approach to the Second Request decision changed subsequent to the release of the 2010 Merger Guidelines. The FTC’s assessment of defenses frequently asserted by merging parties and the average length of time to conduct investigations are also presented.
This study is based on information extracted from non-public memoranda written by agency staff recommending the issuance of Second Requests. Results are provided by industry where possible.
By providing data on the FTC’s initial-phase merger enforcement decisions, this study may help practitioners focus their arguments on topics likely to be of interest to career staff at the FTC and avoid emphasizing topics that, although cited in the Merger Guidelines, receive little attention in FTC memoranda discussing whether to issue a Second Request. These results, when viewed in conjunction with prior studies, may also offer insight on how the importance of certain forms of evidence varies at different stages of an investigation.
Keywords: Merger Enforcement, FTC, Merger Guidelines, Second Request, Antitrust, Clayton Act
JEL Classification: K21, L40, L41, L44, L49Accepted Paper Series
Date posted: February 14, 2013 ; Last revised: January 16, 2014
© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.
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