But if we think of the antitrust laws as speaking to businesses—setting expectations for how antitrust authorities and courts are likely to evaluate the effects of their commercial decisions on competition—the core issues in antitrust law become a matter of procedure as well as substance. Indeed, businesses’ risk evaluations are, as a practical matter, influenced at least as much by antitrust authorities’ processes as by incremental shifts in substantive legal standards. Whether a business chooses to proceed with a given acquisition, for example, is shaped by whether the transaction is likely to close, as well as by the time, costs, and burden it will take to reach closing. Whether a business with a strong market position chooses to adopt a potentially controversial pricing practice will be determined in part by its appetite for the risk that it may need to defend the practice in an extended antitrust investigation.
The past few years have made these procedural implications even more pressing, especially for businesses considering mergers or other commercial alliances. The duration and breadth of antitrust investigations are lengthening. Rising interest rates have increased the cost of capital, and capital market volatility has made valuation especially sensitive to temporal inputs. Timing has intensified as a central factor in business decisions. In our experience, the extended timeframes and high costs for an extended investigation by one or more antitrust authorities or litigation with a U.S. agency can chill businesses’ willingness to undertake all but the largest deals that are likely to receive substantial antitrust scrutiny. Parties to smaller transactions might be unable to sustain the delays and costs of an extended investigation, regardless of the ultimate outcome of that review.
Our aim in this symposium, then, is quite different than that of many other Antitrust Law Journal symposia. Here, we zero in on enforcement by antitrust authorities through the lens of institutional processes—and how those processes affect the efficacy of antitrust enforcement. The contributors examine how certain process features, such as transparency and due process, affect both outcomes on the substantive merits and the role antitrust plays in society, including by guiding business conduct and promoting respect for the law. Our inquiry is broad—spanning jurisdictions and varying types of investigations and proceedings (including mergers, civil conduct, and criminal enforcement).
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