The authors provide an overview of the opinion in United States v. Bertelsmann SE & Co. KGaA et al., and insights stemming from Judge Pan’s decision to exclude the merger efficiencies evidence.
The recent decision by Judge Florence Y. Pan to exclude evidence of merger efficiencies in United States v. Bertelsmann SE & Co. KGaA et al. (Penguin Random House) raises significant questions about the role that efficiencies play in merger challenges.
Specifically, a broader adoption of Judge Pan’s ruling would mean that claimed efficiencies cannot be cognizable under the 2010 U.S. Department of Justice (DOJ) and Federal Trade Commission Horizontal Merger Guidelines without independent verification.
In this article, authors Craig Malam and Russell Molter provide an overview of the Penguin Random House opinion and discuss insights arising from Judge Pan’s decision to exclude the merger efficiencies evidence. They also offer practical steps that parties can take to address efficiency issues when working with the agencies or preparing for trial.
This article originally appeared in Antitrust Magazine Online, a publication of the American Bar Association (ABA), in February 2023.