Antitrust & Trade Law

DOJ’s Failure to Prove Its “Killer Acquisition” Claim In Sabre/ Farelogix and Parallels to Other Recent Government Merger Litigation Losses

Steven C. Sunshine and Julia K. York

Abstract On August 20, 2019, the U.S. Department of Justice (DOJ) sued to block Sabre Corporation (Sabre), a provider of a global distribution system (GDS) to travel agents, from acquiring Farelogix, Inc. (Farelogix), an IT provider to airlines. DOJ advocated a killer acquisition theory, portraying Sabre as a dominant firm intent on “tak[ing] out” Farelogix, […]

Merger Law for Biotech and Killer Acquisitions

D. Daniel Sokol

Abstract This Essay suggests a framework for how to conceptualize “killer acquisitions” in the biotech sector. In a killer acquisition, a larger branded pharmaceutical company buys a start-up company with a pipeline product with the intention to shut the pipeline product down. The Essay offers a way to police against acquisitions that may hurt consumers […]

Regulation and the Marginalist Revolution

Herbert Hovenkamp

Abstract The marginalist revolution in economics became the foundation for the modern regulatory State with its “mixed” economy. For the classical political economists, value was a function of past averages. Marginalism substituted forward looking theories based on expectations about firm and market performance. Marginalism swept through university economics, and by 1920 or so virtually every […]

Vertical Mergers and Entrepreneurial Exit

D. Daniel Sokol

Abstract The idea that tech companies should be permitted to acquire nascent start-ups is under attack from antitrust populists. Yet, this debate on vertical mergers has overlooked important empirical contributions regarding innovation-related mergers in the strategy literature. This Article explores the extant empirical strategy literature, which generally identifies a procompetitive basis that supports vertical mergers […]

Henry N. Butler, REMS-Restricted Drug Distribution Programs and the Antitrust Economics of Refusals to Deal with Potential General Competitors

The Food and Drug Administration Amendments Act of 2007 (FDAAA) grants the Food and Drug Administration (FDA) authority to require a Risk Evaluation and Mitigation Strategy (REMS) from drug manufacturers to ensure that a certain drug’s benefits outweigh its risks. Through REMS, the FDA restricts the distribution of drugs with dangerous characteristics, such as high […]

Alan Devlin, Antitrust Limits on Targeted Patent Aggregation

Patent-assertion entities (PAEs) are non-technology-practicing companies that aggregate and license patents under threat of suit. Their activities have drawn fire, including presidential condemnation, and spurred proposed legislation to protect operating firms against them. PAEs leverage flaws in the patent system to extort firms that independently invent and sell technological goods to consumers. Since PAEs tax […]