Thursday, June 18, 2015

Black Swans, White Whales and Unicorns: When can efficiencies save a merger?

The International Committee 
and the Mergers & Acquisitions Committee of the ABA Section of Antitrust Law, in partnership with the International Committee and Mergers Committee of 
the CBA National Competition Law Section,
are pleased to present
Black Swans, White Whales and Unicorns: When can efficiencies save a merger?
Thursday, June 25, 11:00 am-12:00 pm EST
·         John D. Harkrider, Axinn, Veltrop & Harkrider LLP
·         Deborah L. Feinstein, Federal Trade Commission
·         Brian A. Facey, Blake, Cassels & Graydon LLP
The U.S. Supreme Court has never approved efficiencies as a defense for mergers.  However, the Sixth, D.C., Eighth and Eleventh Circuits, and most recently, the Ninth Circuit, have suggested that efficiencies could save the day for the right merger – albeit most recently cautioning “we remain skeptical about the efficiencies defense in general and about its scope in particular.”  By contrast, Canada’s Supreme Court has just approved a merger to monopoly based on the efficiencies defense, boldly noting that only “marginal efficiency gains are required for the defense to apply”.  Questions remain in both countries and in cross-border cases as to how efficiencies are to be treated in strategic mergers, which is particularly important given the 2014 publication of the Best Practices on Cooperation in Merger Investigations by the U.S. Antitrust Agencies and the Canadian Competition Bureau.

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