Saturday, December 29, 2012
Posted by D. Daniel Sokol
Michael Bernstein and Justin Hedge (Arnold & Porter) ask Maximizing Efficiencies: Getting Credit Where Credit Is Due?
ABSTRACT: Efficiencies are frequently a significant part of the business rationale for a transaction. However, receiving credit for the efficiency-enhancing aspects of a combination in a merger review is often difficult. By the Federal Trade Commission and Department of Justice’s own account, “the antitrust laws give competition, not internal operational efficiency, primacy in protecting customers” and “efficiencies are most likely to make a difference in merger analysis when the likely adverse competitive effects, absent the efficiencies, are not great.” Recent transactions, such as H&R Block/Tax Act, AT&T/T-Mobile, and OSF Healthcare/Rockford, continue to confirm that receiving credit for efficiencies is no easy task.
I was happy to read that they cited my article with Jim Fishkin, Antitrust Merger Efficiencies in the Shadow of the Law.