Posted by Social Science Research Network
Horizontal Shareholding and Antitrust Policy
By Fiona M. Scott Morton (Yale) & Herbert J. Hovenkamp (Univ. of Pennsylvania)
Abstract: “Horizontal shareholding” occurs when one or more equity funds own shares of competitors operating in a concentrated product market. For example, the four largest mutual fund companies might be large shareholders of all the major United States air carriers. A growing body of empirical literature concludes that under these conditions market output in the product market is lower and prices higher than they would otherwise be.
Here we consider how the antitrust laws might be applied to this practice, identifying the issues that courts are likely to encounter and attempting to anticipate litigation problems. We assume that neither the mutual fund managers nor the firms in the product or service market are fixing prices in a way that would subject them to antitrust liability. Section 1 of the Sherman Act and §7 of the Clayton Act take quite different approaches to this problem, but each could be brought to bear. While the current literature on horizontal shareholding does not offer a single robust explanation of how the price increase mechanism works, we show that the “effects” test expressed in the Clayton Act does not require proof of the precise mechanism. Further, §7’s “solely for investment” exception typically will not apply. We also briefly discuss special problems of private plaintiff challenges. Finally, we elaborate the two ways that efficiencies are relevant to analysis of such mergers. First, we show why the efficiency defense as currently formulated will seldom or never save such a merger. Secondly we discuss the problem of remedial efficiencies, or mechanisms for ensuring that judicial relief will not impose its own consumer harm.
Featured News
NCAA and SEC Approve Historic $2.8 Billion Settlement in Antitrust Cases
May 23, 2024 by
CPI
Apple Defends 27% Fee in Compliance with Court Order, Phil Schiller Testifies
May 23, 2024 by
CPI
French Billionaire Xavier Niel Eyes $4 Billion Millicom Buyout
May 23, 2024 by
CPI
ITA-Lufthansa Merger Faces Scrutiny from European Commission
May 23, 2024 by
CPI
Google Explores Major Acquisition of HubSpot to Bolster Cloud
May 23, 2024 by
CPI
Antitrust Mix by CPI
Antitrust Chronicle® – Merger Guidelines Retrospective
May 21, 2024 by
CPI
Mergers of Complements
May 21, 2024 by
CPI
Personality Traits, Private Equity, and Merger Analysis
May 21, 2024 by
CPI
The 2023 Merger Guidelines: Lessons in the Importance of Incipiency, Modern Economics, and Monopsony
May 21, 2024 by
CPI
The 2023 Merger Guidelines: Sharpening Merger Analysis
May 21, 2024 by
CPI