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United States of America

Published online by Cambridge University Press:  05 November 2014

Barry Hawk
Affiliation:
Fordham University School of Law, New York, US
Neal R. Stoll
Affiliation:
Skadden, Arps, Slate, Meagher & Flom LLP, New York, US
Kenneth Schwartz
Affiliation:
Skadden, Arps, Slate, Meagher & Flom LLP, New York, US*
Maher M. Dabbah
Affiliation:
Queen Mary University of London
Paul Lasok QC
Affiliation:
Monckton Chambers
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Summary

Relevant legislation and statutory standards

Merger Control in the US is governed at the federal level primarily by Sections 7 and 7A of the Clayton Act. The first federal attempt to address anti-competitive conduct by competing firms was the Sherman Act in 1890, which prohibits, among other things, certain contracts, combinations and conspiracies between or among competitors in restraint of trade. However, the Sherman Act proved inadequate to deal with the competitive consequences of mergers and acquisitions, and in 1950 Congress amended the Clayton Act of 1914 to better cope with such transactions.

One of the Sherman Act’s weaknesses lay in its inability to prohibit combinations, such as mergers, in which the competitive harm was uncertain. Thus Section 7, the heart of the Clayton Act’s merger control provision, prohibits those transactions ‘where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such an acquisition … may be substantially to lessen competition, or to tend to create a monopoly’.

The Clayton Act was further amended in 1976 by the Hart-Scott-Rodino Antitrust Improvements Act (‘the HSR Act’), to require pre-merger notification of certain mergers and acquisitions of voting securities and assets (the HSR Act is also known as Section 7A of the Clayton Act).

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Chapter
Information
Merger Control Worldwide , pp. 1477 - 1519
Publisher: Cambridge University Press
Print publication year: 2012

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References

Shapiro, Carl, ‘The 2010 Horizontal Merger Guidelines: From Hedgehog to Fox in Forty Years’ (2010) 77 Antitrust L.J. 49Google Scholar
Hovenkamp, Herbert, ‘Merger Actions for Damages’ (1984) 35 Hastings L.J. 937Google Scholar
Schlossberg, R. and Aronson, C. (eds.), Mergers and Acquisitions: Understanding the Antitrust Issues (ABA Section of Antitrust Law, 2000), 341–50

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