DealLawyers.com Blog

Last week, I blogged about the FTC & DOJ’s “Request for Information” (RFI) asking the public to provide information to help the agencies “identify serial acquisitions and roll-up strategies throughout the economy that have led to consolidation that has harmed competition.” A group of former FTC officials recently responded to this initiative with a letter pointing out that it was pretty one-sided and calling for a more balanced approach. Here’s an excerpt:

The current RFI, however, suggests that the agencies have already concluded that “serial acquisitions” harm competition. Although several questions take a neutral approach, many of them solicit negative information about acquisitions, and not one asks about any benefits. For example, Question 2(c) asks whether serial acquisitions encourage “actual or attempted coordination or collusion between competitors” and Question 3 posits nine subparts about ways in which an acquirer might harm competition, including tying and refusals to deal. By contrast, the RFI includes no questions that solicit information about possible pro-competitive benefits from acquisitions; at most, Question 4 asks the public to identify “claimed” business objectives and whether they came to pass.

The letter asks the FTC to supplement the RFI with a series of additional questions proposed by the authors soliciting information about the pro-competitive benefits of serial acquisitions.  It also requests that the agencies withdraw certain questions included in the RFI that “create an appearance that the agencies are interested in ideological issues unrelated to their statutory mission.”

– John Jenkins