As an economist trained in data-driven industrial organization and econometrics, I was happy to read Brian Rafkin’s and Blair Kuykendall’s recent article, Antitrust Cancel Culture: Do Economic Experts Really Cancel Each Other Out in Merger Litigation? Data is the collection of many individual anecdotes that allow patterns, inferences, and conclusions to be drawn out into the light. Like the sunshine, data sheds light where previously there was darkness. By analyzing data, Rafkin and Kuykendall conclude that, more often than not, economics and economic expert testimony matters when a proposed horizontal merger in the U.S. is challenged by the government and ends up being litigated in federal court.
While not the focus of Rafkin and Kuykendall’s analysis, the authors’ list of 18 challenged horizontal mergers that were litigated in U.S. federal court over the past 15 years serves another data-driven purpose. Data show how infrequently a woman is the testifying economic expert in U.S. horizontal merger challenges. Augmenting Rafkin and Kuykendall’s table with the gender of the economic experts shows how rare it is to find a woman as the testifying economic expert in this type of high-stakes merger litigation. Across 23 challenged horizontal mergers—the 18 provided by Rafkin and Kuykendall plus an additional five hospital mergers not included in the authors’ analysis––only one, less than 5 percent, had a woman economic expert testifying on behalf of the government. The data is somewhat better on the side of the merging parties: Five out of the 23 challenged horizontal mergers, nearly 22 percent, had a woman economic expert testifying on behalf of the merging parties. I expect these counts would be similarly small or smaller if parsed along other dimensions of diversity.
Case |
Date Decided |
Judge |
Gender |
Government’s Economic Expert(s) |
Parties’ Economic Expert(s) |
|---|---|---|---|---|---|
FTC v. Thomas Jefferson University |
12/8/2020 |
Gerald J. Pappert |
Male |
Male |
Male |
FTC v. Peabody Energy |
9/29/2020 |
Sarah E. Pitlyk |
Female |
Male |
Female, Male |
United States v. Sabre |
4/7/2020 |
Leonard P. Stark |
Male |
Male |
Male |
New York v. Deutsche Telekom |
2/10/2020 |
Victor Marrero |
Male |
Female, Male |
Male |
FTC v. RAG-Stiftung |
1/24/2020 |
Timothy J. Kelly |
Male |
Male |
Male |
FTC v. Wilh. Wilhelmsen Holding |
10/1/2018 |
Tanya S. Chutkan |
Female |
Male |
Male |
FTC v. Tronox |
9/12/2018 |
Trevor N. McFadden |
Male |
Male |
Male |
FTC v. Sanford Health / Mid Dakota Clinic |
12/14/2017 |
Alice R. Senechal |
Female |
Male |
Male |
United States v. Energy Solutions |
7/13/2017 |
Sue Lewis Robinson |
Female |
Male |
Male |
FTC v. Advocate Health / NorthShore |
3/22/2017 |
Jorge L. Alonso |
Male |
Male |
Male |
United States v. Anthem |
2/8/2017 |
Amy Berman Jackson |
Female |
Male |
Female |
United States v. Aetna |
1/23/2017 |
John D. Bates |
Male |
Male |
Male |
FTC v. Staples |
5/10/2016 |
Emmet G. Sullivan |
Male |
Male |
Male |
FTC v. Pinnacle Health / Penn State Hershey |
5/9/2016 |
John E. Jones III |
Male |
Male |
Male |
FTC v. Steris |
9/24/2015 |
Dan Aaron Polster |
Male |
Male |
Female |
FTC v. Sysco |
6/23/2015 |
Amit P. Mehta |
Male |
Male |
Male |
United States v. Bazaarvoice |
1/8/2014 |
William H. Orrick |
Male |
Male |
Male |
FTC v. OSF / Rockford |
4/5/2012 |
Frederick J. Kapala |
Male |
Male |
Female |
United States v. H&R Block |
11/10/2011 |
Beryl A. Howell |
Female |
Male |
Female |
FTC v. Lab. Corp. of America |
2/22/2011 |
Andrew J. Guilford |
Male |
Male |
Male |
FTC v. CCC Holdings |
3/18/2009 |
Rosemary M. Collyer |
Female |
Male |
Male |
FTC v. Whole Foods Market |
8/16/2007 |
Paul L. Friedman |
Male |
Male |
Male |
FTC v. Foster (Western Refining) |
5/29/2007 |
James Browning |
Male |
Male |
Male |
Of course, there are many holes one could try to poke in this. Maybe women economists are slated to be the testifying economic expert in challenged horizontal mergers that the parties’ abandon before litigation in federal court commences. Or maybe women economists are testifying as the economic expert in vertical merger trials in federal court (though I know of only two such acquisitions ). Or maybe women are testifying as the economic expert in challenged horizontal mergers that go through the Federal Trade Commission’s Part 3 administrative litigation channel or arbitration with the Department of Justice Antitrust Division rather than through federal court. Or maybe the past is not reflective of the future, with the composition of challenged horizontal mergers that have not yet been decided in federal court looking very different than those already decided (though I know of only one challenged horizontal merger pending a decision for which the U.S. government’s testifying economic expert is a woman ). More data––and along with it more sunshine––would be able to say whether any of these are real holes to poke or not.
When the financial stakes are high, to gain insights, data on challenged horizontal mergers in federal court often are augmented with data on the composition of the judiciary. The stakes are similarly high for advancing the diversity of voices within the economic and legal professions in high-stakes litigation. While the relatively small number of observations—23—may make it difficult to draw definitive conclusions, the patterns in the results are instructive and suggest scope for improvement. As with many aspects of business, if you do not measure it, then you cannot take action to improve it. Measuring diversity with data means we learn where we are and where there is room to improve.
The views expressed in this article are the author’s own.
