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The article "Revisiting Structural Remedies" discusses the shift in competition authorities' preference from conduct remedies to structural remedies, particularly divestitures, due to concerns about the limitations and failures of divestitures in preserving competition. The article highlights the challenges and pitfalls associated with divestitures, such as the merging parties' incentives to undermine the effectiveness of divestitures and the difficulties in ensuring the viability of divested assets. Various studies, including those by the FTC and independent researchers, have shown mixed results regarding the success of divestitures in restoring competition, prompting a call for more rigorous empirical studies to inform future antitrust policies. [Extracted from the article]

The article examines the efficiency rebuttal section in the 2023 Merger Guidelines and argues that it fails to give proper consideration to the Clayton Act, legal precedent, and modern economics. The author asserts that there is no valid justification for allowing anticompetitive horizontal mergers based on efficiencies, as supported by textual analysis, legislative history, and economic studies. The article also explores the absence of an efficiency rebuttal in the Clayton Act's text and the Supreme Court's position on the issue. Ultimately, the author suggests that the Guidelines should have eliminated the efficiency rebuttal for all horizontal merger cases. [Extracted from the article]

The article explores the 2023 Merger Guidelines and features a discussion between legal scholars Tim Wu and Herbert Hovenkamp. They offer different perspectives on assessing harm to competition in antitrust cases, with Hovenkamp emphasizing measurable metrics like price and output, while Wu argues for a focus on harm to the competitive process. The text discusses concerns about anticompetitive mergers in the tech industry and the enforcement of merger guidelines, highlighting examples such as Zillow's acquisition of StreetEasy, Google's acquisition of Waze, and Facebook's acquisition of Instagram. The participants also discuss various aspects of the new Guidelines, including market definition, the potential competition doctrine, and the treatment of rollups of private equity. They express differing opinions on the effectiveness and implications of certain Guidelines, but agree that they reflect current thinking in antitrust enforcement. [Extracted from the article]

The Office of the Comptroller of the Currency (OCC) has proposed changes to the review criteria for bank mergers under the Bank Merger Act (BMA). The proposed changes focus on three factors: financial stability, financial and managerial resources and prospects, and convenience and needs of the community. The changes include the elimination of expedited review and streamlined applications, as well as the introduction of indicators for acceptance or denial of applications. The American Bankers Association (ABA) has expressed concerns about the proposed changes, emphasizing the need for tailored application information and holistic evaluation of relevant factors. The OCC's goal is to strengthen the merger review process, and if implemented, the changes may lead to longer review periods for proposed mergers. [Extracted from the article]

Matt Reilly and Rich Cunningham are partners at Kirkland & Ellis LLP in Washington, D.C. Mr. Reilly was Assistant Director of the Mergers IV division of the FTC's Bureau of Competition from 2008-2012, after serving as a Staff Attorney and Deputy Assistant Director of the agency's Mergers I division. Both DOJ and the FTC have published guidelines counseling companies (and their lawyers) on how to define an appropriate asset package, identify an acceptable buyer, and avoid questionable entanglements. DOJ and the FTC Have Endorsed Divestitures for Years DOJ and the FTC have accepted divestitures as viable, effective remedies to competition problems in mergers for more than 40 years. [Extracted from the article]

On July 13, 2022, Runtriz's Chief Executive Officer sent a letter by email to stockholders informing them that the merger had been approved by written consent of stockholders. Under the Delaware appraisal statute, stockholders of Delaware corporations who do not vote in favor of a merger may demand appraisal of their shares by the Delaware Court of Chancery. [Extracted from the article]

The Delaware Court of Chancery recently denied a motion to dismiss a plaintiff's request for contract reformation in a case involving a delayed merger closing date. The plaintiff, Ari Greenberg, negotiated an employment agreement and a stock option agreement with BCV Social and RateGain, respectively, in relation to RateGain's acquisition of BCV Social. Due to the delayed merger closing, Greenberg was terminated before his stock options could vest. The court granted the motion to dismiss a related claim regarding a breach of contract due to the statute of limitations. [Extracted from the article]

The Office of the Comptroller of the Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) have finalized policy statements on bank merger reviews, while the Federal Reserve Board of Governors has not issued any updates. The Department of Justice (DOJ) has withdrawn from the 1995 joint Bank Merger Guidelines and plans to transition to the 2023 Merger Guidelines for its review of bank mergers. These changes may lead to confusion for bank merger applicants and could prolong the review process, urging bank acquirers to consider the updated policy statements and guidelines before strategic transactions. [Extracted from the article]

In a recent opinion, Vice Chancellor Laster of the Delaware Chancery Court ruled that specific performance was not available as a remedy for a special purpose acquisition company (SPAC) in its attempt to enforce a merger with Tiger Resort Asia Ltd., a subsidiary of Universal Entertainment Corp. The dispute arose from a broken deal where the target breached its obligation to close the merger. The court rejected specific performance as a suitable remedy due to the difficulty of enforcing it in the Philippines, the potential violation of a court order, and the SPAC's questionable conduct. However, the SPAC may still be able to recover damages. [Extracted from the article]

Accordingly, mergers in markets with HHIs greater than 1,800 and an increase of greater than 100 "cause[] undue concentration and trigger[] a structural presumption that the merger[s] may substantially lessen competition or tend to create a monopoly." The Federal Trade Commission's (FTC) and Department of Justice's (DOJ) jointly issued Draft Merger Guidelines provide business and practitioners a window into how the agencies analyze mergers. [Extracted from the article]

The Federal Trade Commission (FTC) has been increasingly enforcing Section 5 of the Federal Trade Commission Act, which prohibits unfair methods of competition in commerce, particularly in relation to mergers and acquisitions. Although the FTC has not successfully blocked recent large deals such as Meta and Within Unlimited, or the Microsoft-Activision merger, it has shown a commitment to Section 5 enforcement. U.S. Federal Trade Commissioner Christine S. Wilson has stated that the current FTC leadership has expanded the scope of merger investigations to analyze a broader range of market realities and the impact on labor markets. It is expected that the FTC's regulatory activity in mergers and acquisitions will continue in the coming years. [Extracted from the article]

The FDIC deposit data therefore cannot be used to calculate the deposit share of virtual banks in any narrower geography.27 They can, however, be used to calculate the nationwide aggregate deposit share of virtual banks. Ignoring Virtual Banks Overstates Concentration When the Fed and the Antitrust Division review a proposed retail bank merger, they customarily calculate market shares using FDIC deposit data. Since virtual banks do not have branches, the FDIC deposit data typically assign all of a virtual bank's deposits to a single location for (the bank's headquarters). Suppose that virtual banks have in aggregate a percent of the deposits in geographic market m. Suppose further that none of the virtual banks are headquartered in geographic market m, and so their deposits are credited elsewhere in the FDIC deposit data. [Extracted from the article]

During the week of July 17, 2023, Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra agreed to interviews with a series of news outlets and provided his perspective on a range of topics. In the most detailed interview, with, Chopra lauded the shift towards more consumer-friendly overdraft policies. [Extracted from the article]

John N. Drobak Rethinking Market Regulation: Helping Labor by Overcoming Economic Myths Oxford University Press, 2021 "No one rings a bell when a union negotiates higher wages", laments John Drobak, the George Alexander Madill Professor of Law at the Washington University School of Law in St. Louis in his new, labor-oriented book on markets and regulation. Although Drobak's take on merger policy is labor-oriented, he does not focus, as some progressive antitrust advocates do, on mergers' potential effect in reducing wages. As Drobak explains, these negative externalities are not presently considered in merger analysis, except perhaps to justify a merger on efficiency grounds. [Extracted from the article]

On December 30, 2021, the Federal Reserve Board (Fed) published updates to its FAQs for Regulations H, O, W, and Y, as well as FAQs related to covered savings associations. Associations The Fed establishes a new set of FAQs that address covered savings associations (CSAs) and companies that control a CSA pursuant to section SA of the Home Owners' Loan Act. [Extracted from the article]

Three articles in this issue deal with larger firms acquiring smaller firms. Some institutional investments are led by private equity firms, and like any other investor, PE firms want to make successful investments. Sometimes, however, PE investments do not work out, and the PE firm tries to invoke the "failing firm" defense to sell a company to a strategic buyer. [Extracted from the article]

On April 16, 2020, the U.S. District Court for the District of Connecticut (the "Court") dismissed a shareholder suit claiming that SI Financial Group, Inc. ("SI FI"), the parent company of the Connecticut-based full service Savings Institute Bank and Trust Company ("SI Bank"), and Berkshire Hills Bancorp Inc. ("Berkshire"), the parent company of Berkshire Bank and acquirer of SI Bank, violated federal proxy statement rules by using a misleading proxy to encourage shareholders to approve the bank's merger. The Court thus agreed with the defendant banks-SI FI and Berkshire-that the shareholders failed to state a claim that the proxy statement encouraging a vote to approve the merger was misleading and dismissed the suit. [Extracted from the article]