[Proposed] Amicus Curiae Brief of Law Professors as Amici Curiae in Support of Neither Party [United States v. ASSA ABLOY, Spectrum Brands Holdings]
2023; RELX Group (Netherlands); Linguagem: Inglês
10.2139/ssrn.4549899
ISSN1556-5068
Autores ResumoCongress's intent in passing Section 7 of the Clayton Act was to equip the agencies with a tool to prevent mergers where "the effect of . . . [an] acquisition may be substantially to lessen competition, or to tend to create a monopoly." 15 U.S.C. §18. Where an agency challenges a merger, the parties may propose to divest some overlapping assets to ameliorate the competitive concerns. For a number of reasons, the parties should have the burden of establishing that such a divestiture will preserve competition potentially lost as a result of the merger as initially proposed. That allocation of the burden of proof is contemplated by the procedures required by the Hart-Scott-Rodino Act. The divestee may be incapable of competing as intensely as the party that presently owns the assets or lack the incentive to do so; indeed, the parties have an incentive to identify a divestiture buyer who will not, in fact, compete as intensely, thereby enabling the merging firm to secure market power and higher profits. Defendants that can secure supracompetitive profits through merger also are incentivized to far outspend and outgun the agencies in litigation, which can skew the trial outcome away from the merits. Placing the burden on the parties gives effect to Section 7's relatively expansive definition of antitrust liability, which reflects Congress's overarching concern with avoiding anticompetitive mergers.
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