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The 2010 Merger Guidelines and the “Litigation Mulligan”: Better Economics but Not (Necessarily) More Clarity Before the Agencies and the Courts

By Hill Wellford

The new Horizontal Merger Guidelines, issued by the U.S. antitrust Agencies on August 19, 2010, mark a clear change from their 1992 predecessor. They reduce the importance of traditional market definition, increase Herfindahl-Hirschman Index (“HHI”) thresholds, and expand the types of evidence considered.

Most commentary to date has focused on the fact that the new Guidelines largely codify hitherto-unofficial (although widely known) practices of Agency staff, and this is true, with some key exceptions. But such commentary suggests a no-big-deal view of the new Guidelines that misses something important. Read the entire article here.

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