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PRIVATE MERGER CHALLENGES UNDER SECTION 16 OF THE CLAYTON ACT: CAUTION POST-\JELD-WEN\
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PRIVATE MERGER CHALLENGES UNDER SECTION 16 OF THE CLAYTON ACT: CAUTION POST-\JELD-WEN\
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Journal Article
PRIVATE MERGER CHALLENGES UNDER SECTION 16 OF THE CLAYTON ACT: CAUTION POST-\JELD-WEN\
2021
Overview
Private merger enforcement is a thorny corner of antitrust law. In Part I I provide a brief overview of the relevant antitrust laws — in particular, the 'Clayton Act' and the Celler-Kefauver Amendments.
In Part II I explore the standing requirements for private litigants under section 16 of the 'Clayton Act' in merger challenges. I then provide a summary of the Supreme Court’s opinion in 'California v American Stores Co', in which the Court confirmed that states and other private plaintiffs can seek divestiture and the full range of equitable remedies under section 16 of the 'Clayton Act'. Lastly, I undergo a substantive analysis of the 2021 Fourth Circuit 'JELD-WEN' case. In Part III I explore the implications of granting equitable remedies under section 16 to private litigants in merger challenges. I acknowledge that private merger enforcement is part of the overall antitrust enforcement schema designed by Congress, and that the importance of private plaintiffs in the overall system has been echoed by the Supreme Court. I then detail counterbalancing concerns unique to private merger enforcement under section 16 of the 'Clayton Act'. Ultimately, I argue that despite the 'JELD-WEN' ruling, courts should continue to review these suits with a critical eye. When evaluating private merger challenges, courts ought to consistently apply the antitrust injury doctrine, give preference to consumer plaintiffs over competitor plaintiffs, and be wary of unrecoverable waste resulting from divestiture in post-merger consummation challenges.
Publisher
students of the University of Pennsylvania Law School,University of Pennsylvania, Law School
