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Academic Articles Awards > Mergers

Getting Vertical Mergers through the Agencies: Let’s Make a Deal

James A. Keyte and Kenneth B. Schwartz, Antitrust, Vol. 29, Issue 3, pp. 10-17, Summer 2015

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In today’s regulatory climate, the Agencies are willing to litigate horizontal merger challenges with regularity. Vertical merger investigations, by contrast, rarely proceed to litigation and are typically resolved through consent orders with conduct remedies, for two interrelated reasons. First, because the case law on vertical mergers is outdated, bringing a vertical merger challenge involves considerably more risk and uncertainty for the Agencies. Second, the Agencies appear to appreciate the complexity and difficulty of proving that a vertical merger will substantially harm competition or result in anticompetitive effects given the absence of a structural presumption and the likelihood cognizable, merger-specific efficiencies. As a result, parties to a vertical merger often can pursue a strategy of negotiating with the Agencies (and any private parties that may be affected by the deal) to agree on a conduct remedy that mitigates any competitive concerns.

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