Comparing Vertical Merger Guidelines Across Jurisdictions

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The authors explore the possible implications of these guidelines for national, cross-border, and transatlantic mergers in this Law360 article.

Note: On June 30, 2020, the Department of Justice and Federal Trade Commission issued revised Vertical Merger Guidelines (VMGs). Many of the comments and suggestions raised below were reflected in the 2020 VMGs. For example, the importance of incentive and ability were recognized and used as the foundation for an economically sound set of safe harbors in vertical cases

On September 15, 2021, the FTC voted to withdraw from these guidelines. The majority statement in that decision took issue with separate sections of the 2020 VMGs related to elimination of double markup and efficiencies while endorsing the advances made through this comment process on the core sections: “The 2020 VMGs represent a substantial improvement over the 1984 guidelines that they replaced and address important principles such as raising rivals’ costs, foreclosure, and misuse of competitively sensitive information.”


The Department of Justice published its long-awaited draft vertical merger guidelines (DVMG) on January 10, 2020. The relationship among guidelines in major jurisdictions is important for counsel to understand in day-to-day advisory and expert work. The apparent similarities of the guidelines, however, can sometimes mask significant gaps in their practical application. To better understand the potential effect of the DVMG towards international convergence, the authors discuss:

  • Approaches to and scope and depth of guidance
  • Market definition
  • Safe harbor threshold
  • Evidence and unilateral effects
  • Coordinated effects
  • Efficiencies

This article was originally published by Law360 in February 2020.


The views expressed in this article are solely those of the authors, who are responsible for the content, and do not necessarily represent the views of Cornerstone Research.

Comparing Vertical Merger Guidelines Across Jurisdictions

Authors

  • Chicago

Kostis Hatzitaskos

Vice President

  • Washington

W. Robert Majure

Vice President