February 6, 2013
How Do Judges do with merger cases?
Posted by D. Daniel Sokol
The Ambev/Grupo Modelo merger in the news the past week comes at a great time for my antitrust mergers class. Yesterday we made it through Whole Foods/Wild Oats with some help from Paul Friedman of Dechert* who litigated the case for the parties. What the students have come to appreciate is that judges: 1. like the structural presumption (this is why I predict that courts will never adopt the 2010 Merger Guidelines with the same vigor as they did the 1992 Merger Guidelines); 2. Judges get confused by competing economic experts; 3. Judges like a good story; 4. documents tell a good story more than econometrics to judges; 5. cross-examination tells a good story better than econometrics to judges, which leads me to my big conclusion -- 6. there are two types of merger analysis -- that done before the agencies and a somewhat distinct merger analysis before courts. In the former economics plays a much larger role than the latter.
Next on the agenda for the class: Thursday (tomorrow) we cover Genzyme/Novazyme and next Tuesday Oracle/Peoplesoft.
* Between Staples/Office Depot last Thursday (with Jim Fishkin helping out with class) and Whole Foods/Wild Oats on Tuesday the students have come to appreciate that the Dechert antitrust team is really good.
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Jim Fishkin supervised my summer internship at the FTC and gave a wonderful presentation to my class during my first year of law teaching. You've made great use of your guest speaker slots.
Posted by: Andrew Chin | Feb 6, 2013 10:04:34 PM
Love to hear that !
I am convinced that the storytelling models used by so many sectors (marketing, PR, Lobbying, etc.) are also applying for antitrust judges (they are humans too I think).
I Was waiting to hear that for many years.
I can confirm that (here in France), antitrust judges are very sensible to this also that lawyers handling well the storytelling models are few, maybe even very few.
Posted by: FOURNIER Arnaud | Feb 11, 2013 11:01:03 PM