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BLT: August 2014

The Forward-Looking Nature of Merger Analysis

Feature Articles

The Forward-Looking Nature of Merger Analysis

The task of merger review is to predict whether the merger’s likely competitive effects based on facts, economic learning, and reasoned analysis require intervention to prevent substantial harm to competition and consumers. This article will focus on the analytical process the FTC uses to predict the likely course of competition going forward and the impact of an acquisition on that competition. We will examine how our fact-intensive inquiry applies in a variety of fact patterns, ranging from situations where merging parties are direct competitors in mature markets, to scenarios where parties are likely to compete in a future market.

Last year, the Securities Exchange Commission (SEC) adopted Rule 506(c) of the Securities Act of 1933, which, in a major departure from prior securities practice, allowed the use of general solicitation and general advertising in connection with unregistered offers and sales of securities. The new rule imposed three conditions to the application of the exemption: (1) the purchasers had to be accredited investors; (2) the issuer had to take “reasonable steps” to verify the accredited investor status of the purchasers; and (3) the terms of Securities Act Rules 501, 502(a), and 502(d) had to be observed.

Effective August 1, 2014, Delaware amended the Delaware Limited Liability Company Act, the Delaware Revised Uniform Limited Partnership Act, the Delaware Revised Uniform Partnership Act, and the Delaware Statutory Trust Act. The following is a brief summary of certain of the significant amendments affecting Delaware limited liability companies, limited partnerships, general partnerships, and statutory trusts.

Judge Jean FitzSimon knows something about nearly every legal job – government attorney, in-house attorney, private practice, and of course, serving as a judge. She has been very active in the Business Law Section of the ABA and founded the Corporate Compliance Committee.

The May 2014 issue of The Business Lawyer includes two excellent articles, “Rethinking Basic” by Lucian A. Bebchuk and Allen Ferrell, and “Equity Receivers and the In Pari Delicto Defense” by Hon. Steven Rhodes and Kathy Bazoian Phelps. Also featured are details and registration information for the first Business Law Section Annual Meeting, September 10 – 13, 2014 at the Hyatt Regency Chicago, including the first ever in-person In The Know program.

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