Antitrust Mergers and Regulatory Uncertainty

57 Pages Posted: 11 Dec 2022

See all articles by D. Daniel Sokol

D. Daniel Sokol

USC Gould School of Law; USC Marshall School of Business

Marissa Ginn

Analysis Group, Inc.

Robert Calzaretta

Analysis Group, Inc.

Marcello Santana

Analysis Group, Inc.

Date Written: December 6, 2022

Abstract

Estimating antitrust risk is fundamental to identifying, proposing, and pricing deals. A more informed understanding of what to expect when meeting with agency staff and leadership will help antitrust lawyers and economists (or other consultants) anticipate the critical questions and potential paths that should be addressed regarding antitrust merger risk. This article uses practitioner surveys to understand whether and how the change in the Biden administration’s antitrust agenda has affected merger review, investments, decision making, and counsel. The surveys also offer antitrust agencies an opportunity to think about the optimal design of the merger control system and various consequences of certain policy choices and institutional design changes. A quantitative online survey was conducted first, followed by qualitative discussions with practice group leadership across top antitrust law firms. Both studies were designed to identify whether respondents perceived any substantive shifts from prior administrations to the Biden administration, the impact of such shifts (if any) on merging parties, and any notable differences between the DOJ and FTC in enforcement and procedures. Our surveys indicate that practitioners have a more critical perception of the FTC and DOJ compared to prior administrations. Both agencies are perceived as less transparent and less fair in their interactions with merging parties. The enforcement process is seen as more demanding in terms of scope of data collected and is reported to take longer to complete. The agencies have also departed from precedent as they increasingly scrutinize labor issues and vertical deals.

Keywords: antitrust, ftc, mergers, institutional analysis, competition, law and economics

JEL Classification: K21, L40

Suggested Citation

Sokol, D. Daniel and Ginn, Marissa and Calzaretta, Robert and Santana, Marcello, Antitrust Mergers and Regulatory Uncertainty (December 6, 2022). Available at SSRN: https://ssrn.com/abstract=4295283 or http://dx.doi.org/10.2139/ssrn.4295283

D. Daniel Sokol (Contact Author)

USC Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

USC Marshall School of Business ( email )

701 Exposition Blvd
Los Angeles, CA California 90089
United States

Marissa Ginn

Analysis Group, Inc.

Robert Calzaretta

Analysis Group, Inc. ( email )

111 Huntington Avenue
10th floor
Boston, MA 02199
United States

Marcello Santana

Analysis Group, Inc.

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