Explore All The Prompts
In the seventh entry of the Prompt Series, while we usually try to make it easier on our antitrust experts by soliciting yes/no type answers. You will see below that most contributors took advantage of this format, but a few would not be so constrained…
"Thinking about merger review, the role of the states, and potential changes to state law, do you agree or disagree with the following statements?"
The Prompt
Answering antitrust challenges one question at a time
The Chamber has assembled a range of preeminent experts in the field of antitrust from across a wide political spectrum to offer timely views on key questions of antitrust law and policy. This group brings together senior enforcers spanning seven administrations, from both the Antitrust Division at the Department of Justice and the Federal Trade Commission.
Participating contributors* unanimously agreed with the first statement:
“The status quo works fairly well. State AGs are already able to enforce the Clayton Act.”
But they were evenly split about the second statement:
“It is fine for states to stand up filing requirements for non-HSR reportable transactions that could have highly localized impact in a state.”
(One expert who agreed with the above statement added 'what a pain and a great state fundraiser!')
And they were evenly split about the next statement:
“The recent Uniform Law Commission model HSR law – already passed in Washington in Colorado – makes sense. It simply provides state AGs with easier access to federal HSR filings in exchange for confidentiality protections.”
…though one agreement was qualified (“but only if there is reason to believe the confidentiality protections will be effective”), as was one disagreement (“[I] have not read the model HSR law, but if the description is accurate it does make sense to me”).
Only one participant outright disagreed with the fourth statement:
Efforts in the states to go further and establish a process and legal standard for merger review at the state level in contrast to federal law would be significant problem for M&A activity in the United States.
…with one calling it a “terrible idea” and another specifying that they “strongly agree.” However, one participant declined to choose, adding that they “cannot just agree or disagree, [it] depends on the details”.
That expert gave the same answer in response to the final statement:
States should chart a different path on M&A than the current federal system.
All other responses ranged from “disagree” to “strongly disagree”
*Because not every expert participated in this Prompt, even “unanimous” responses should not be attributed to any individual.
