Regarding the judge's use of the word "may" vs "will". Hoeg weighed in....
Below is the paragraph in question since he only quoted a single sentence. So I don't think this will fly in the appeals court. Also, Judge Corley emphasized the word "substantially" which is the crux of she is saying, that the FTC has not shown that the acquisition "will probably
substantially" lessen competition. But the paragraph below also says that a "certainty, even a high probability, need not be shown".
And this paragraph strikes me as damn familiar....
"The theory of competition and monopoly that has been used to given concrete meaning to section 7 teaches that an acquisition which reduces the number of significant sellers in a market already highly concentrated and prone to collusion by reason of its history and circumstances is unlawful in the absence of special circumstances. "
Section 7 forbids mergers and other acquisitions the effect of which "may" be to lessen competition substantially. A certainty, even a high probability, need not be shown. Of course the word "may" should not be taken literally, for if it were, every acquisition would be unlawful. But the statute requires a prediction, and doubts are to be resolved against the transaction. See, e.g.,
United States v. Philadelphia National Bank, 374 U.S. 321, 362-63,
83 S.Ct. 1715, 1740-41,
10 L.Ed.2d 915 (1963);
United States v. Falstaff Brewing Corp., 410 U.S. 526, 555-58,
93 S.Ct. 1096, 1112-14,
35 L.Ed.2d 475 (1973). The theory of competition and monopoly that has been used to given concrete meaning to section 7 teaches that an acquisition which reduces the number of significant sellers in a market already highly concentrated and prone to collusion by reason of its history and circumstances is unlawful in the absence of special circumstances. See, e.g.,
Hospital Corp. of America v. FTC, 807 F.2d 1381, 1389 (7th Cir. 1986).
Read Federal Trade Com'n v. Elders Grain, Inc., 868 F.2d 901, see flags on bad law, and search Casetext’s comprehensive legal database
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