Agencies and legislators have raised concerns that acquisitions backed by private equity (PE) threaten competition, but few, if any, have offered explanations as to why they pose a unique threat. In this article, we argue that PE-backed acquisitions may avoid antitrust enforcement because they escape detection. Under the Hart-Scott-Rodino Antitrust Improvements Act, parties intending to merge must notify federal authorities and wait for clearance. However, various exemptions exist based on the size of the transaction, parties involved, and proportion of control conferred by the merger. Recent work demonstrates that to police mergers effectively, agencies must be informed about transactions in their incipiency, meaning that in many economically important industries, the contours of the premerger notification program under the Act are, in practice, the same as the contours of the substantive legal standard. We show that when the Act’s exemptions are applied to PE’s standard investment structure, which use an array of intermediate special purpose vehicles to minimize taxes, share risks, and distribute fees, many PE-backed acquisitions that would otherwise be reportable are exempt. We support our argument with merger and filing data.

Generative artificial intelligence is being rapidly deployed for corporate tasks including pricing. Suppose one of these machines communicates with the pricing manager of a competing firm, proposes to collude, receives assent, and raises price. Is this a crime under US antitrust laws, and, if so, who is liable? Based on the observed behavior of the most widely adopted large language model, we argue that this conduct is imminent, would satisfy the requirements for agreement and intent under Section 1 of the Sherman Act, and confer criminal liability to both firms as well as the pricing manager of the competing firm.

Intrabrand non-price vertical restraints emerge from agreements between upstream and downstream firms and impose conditions on the downstream firm’s resale of products. They are prevalent in the economy, especially in consumer-facing industries. Following the Supreme Court’s 1977 decision in Sylvania, these restrictions have been subject to the rule of reason. In Sylvania, the Court noted that these restraints incentivize downstream firms to invest in product launches and brand promotion. Yet, if one of the main objectives of these restraints is to facilitate brand building and product introduction, a question arises as to whether they should be revisited at some point in the product’s lifecycle. This paper argues that intrabrand non-price vertical restraints should be limited in duration. The initial phase of exclusivity incentivizes downstream firms to invest in new products and brands. But once these products gain recognition and firms recoup their investment, exclusivity starts maintaining prices above competitive levels without offering any countervailing competitive benefits. At this point, these restraints should be found unreasonable. To substantiate this framework, this paper presents both a novel economic model and a new empirical study of the exclusive territory provisions in the ready-to-drink beverage industry. It shows that when third-party distributors violate exclusive territories, prices of both affected and rival products decrease. Additionally, product sales in the affected territories either experience an increase or remain stable, suggesting a lack of significant decline in product quality. However, the breach of the exclusive territories leads to a reduction in product variety, underscoring the significance of these restraints for downstream investment in new products.

Cluster products are complementary goods that have reduced transaction costs when purchased from a single company. These products are economically important and abundant in markets. A notable example is the commercial banking products. In this particular market, consumers arguably select banks rather than specific banking products, allowing banks to leverage their power in one product market, such as loans, to set rates in another product market, such as deposits. Although the concept of cluster products has roots in seminal Supreme Court decisions from the 1960s, modern regulatory analysis of proposed bank mergers often overlooks this phenomenon. In this paper, we present a structural demand and supply model for loans and deposits that accounts for the complementarity between these commercial banking products. In our model, banks compete in these two product markets by taking into consideration the interplay between the demands for both products. We use our model to predict the impact of actual mergers on deposit and loan rates charged by and market shares of each market participant. Subsequently, we compare these predictions to the rates and shares that were realized after the studied mergers.

Big Tech companies acquired at least 710 companies since 2000, whereas US federal regulators and courts did not block any of these deals. Given these figures, it is reasonable to conclude that there exists a discrepancy between the industry outlook on markets and competition, and that of antitrust authorities. This paper suggests defining markets for consumer data using the existing U.S. antitrust framework, specifically that of Clayton Act §7. It shows how existing tools, such as buyer substitution and “practical indicia” of Brown Shoe, sufficiently define markets for data that appear to be pivotal in the acquisitions engaged by internet platforms. It further applies two existing theories of harm, namely unilateral effects of horizontal merger framework and foreclosure theory of harm belonging to the vertical merger framework, to outline the inclusion of data markets and consumer data products in the modern antitrust analysis of M&A activity by major internet platforms.