Wednesday, February 6, 2013
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.