Date of Defense

4-16-2024

Date of Graduation

4-2024

Department

Finance and Commercial Law

First Advisor

Norman Hawker

Second Advisor

Lauren Foley

Third Advisor

Timothy Eagle

Abstract

This legal analysis examines the “Competition and Antitrust Law Enforcement Reform Act of 2021” proposed by Senator Amy Klobuchar, which would amend Section 7 of the Clayton Act to prohibit more anticompetitive mergers and acquisitions. Senator Klobuchar and other antitrust law experts disagree with how courts currently evaluate mergers using the Chicago School of Thought, and Klobuchar sought to strengthen antitrust laws which would change the way mergers are evaluated. This bill mainly aimed to create a lower burden of establishing an anticompetitive merger, from mergers that may “substantially lessen competition” to mergers that may “create an appreciable risk of materially lessening competition.” The bill also included specific factors that could establish an unlawful acquisition. This paper’s legal analysis evaluated three mergers allowed either by the FTC or by a court: 1) Amazon and Whole Foods Market, 2) Microsoft Corporation and Activision Inc., and 3) Butterworth Hospital and Blodgett Memorial Medical Center. The mergers were evaluated as if the “Competition and Antitrust Law Enforcement Reform Act of 2021” were in effect. The evaluation of these mergers revealed two key issues with the proposed bill: a level of certainty set too high to reveal more anticompetitive mergers, and a focus on anticompetitive factors that ignored the others that could harm consumers and establish anticompetitive conduct. Two recommendations are given to strengthen the “Competition and Antitrust Law Enforcement Reform Act of 2021”: 1) Lowering the level of certainty from a “reasonable probability” of establishing the burden of lessening competition to “a possibility” and 2) inserting additional factors that could be used to establish an anticompetitive merger based on Michael Porter’s “Five Competitive Forces” that shape industry competition. These recommendations would create a higher likelihood of success in prohibiting more anticompetitive mergers.

Access Setting

Honors Thesis-Open Access

Additional Files
Honors Thesis Presentation.pdf (475 kB)
Defense Presentation
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