Common Sense about Common Ownership

Keith Klovers, Douglas H. Ginsburg, Common sense about common ownership, May 2018, Concurrences N° 2-2018, Art. N° 86847, https://www.concurrences.com/en/review/issues/no-2-2018/articles/common-sense-about-common-ownership-86847-en

Posted: 5 May 2021

See all articles by Keith Klovers

Keith Klovers

Wilson Sonsini Goodrich & Rosati

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit; George Mason University - Antonin Scalia Law School, Faculty

Multiple version iconThere are 2 versions of this paper

Date Written: May 17, 2018

Abstract

Some scholars have argued that the phenomenon known as common ownership, particularly by large investment managers, is anticompetitive and prohibited by the U.S. antitrust laws. These proponents call for the divestiture of trillions of dollars of equities. We believe the argument for antitrust enforcement against common ownership is misguided. First, proponents conflate management by investment managers and economic ownership by individual account holders and therefore incorrectly attribute allegedly anticompetitive conduct to the investment managers. Second, proponents substantially overstate the validity and strength of the existing empirical work purporting to show common ownership causes anticompetitive harm. Third, proponents overstate their legal case, both by relying upon inapplicable cross ownership cases and by stretching the holdings of those cases. Fourth, at bottom proponents concerns are with either conscious parallelism, which is not illegal, or anticompetitive conduct that, if proven, could be addressed using established antitrust doctrines applicable to hub-and-spoke conspiracies and the anticompetitive exchange of information.

Keywords: United States of America, International, Burden of proof, Liability, Foreign investment, Market economy investors, Financial services

JEL Classification: K21, G34

Suggested Citation

Klovers, Keith and Ginsburg, Douglas H., Common Sense about Common Ownership (May 17, 2018). Keith Klovers, Douglas H. Ginsburg, Common sense about common ownership, May 2018, Concurrences N° 2-2018, Art. N° 86847, https://www.concurrences.com/en/review/issues/no-2-2018/articles/common-sense-about-common-ownership-86847-en, Available at SSRN: https://ssrn.com/abstract=3835947

Keith Klovers (Contact Author)

Wilson Sonsini Goodrich & Rosati ( email )

650 Page Mill Rd
Palo Alto, CA 94304-1050
United States

Douglas H. Ginsburg

U.S. Court of Appeals for the District of Columbia Circuit ( email )

333 Constitution Ave NW
Room 5523
Washington, DC 20001
United States

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
361
PlumX Metrics