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University of Florida
Levin College of Law

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Friday, February 12, 2010

Merger Remedies Versus Efficiency Defence: An Analysis of Merging Parties’ Litigation Strategy in EC Merger Cases

Posted by D. Daniel Sokol

Peter L. Ormosi, ESRC Centre for Competition Policy, University of East Anglia, has a paper on Merger Remedies Versus Efficiency Defence: An Analysis of Merging Parties’ Litigation Strategy in EC Merger Cases.

ABSTRACT: This paper contributes to the understanding of entrepreneurial motives in merger litigation by looking at how merging parties construct their litigation strategy in European Community merger procedures, given the environment determined by relevant merger legislations and the European Commission’s practice. The main focus of the paper is on two major questions in merger litigation strategy: whether to reveal efficiency related evidence to the Commission, and – if a remedy is offered – when to make that offer. As the regulatory framework and the Commission’s decision together determine the payoffs that any combination of litigation strategy leads to, companies are expected to design their strategy that helps them in achieving as early an approval as possible. Put differently, the paper is a test of how the Commission’s signals affect merging parties’ behaviour with regards to their decisions on remedy offers and efficiency claims. By analysing the Commission’s practice between 1999 and 2008, the paper examines empirically the determinants of the strategy that parties follow in individual merger cases.


 

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