Applied Antitrust Law

Dale Collins
NYU School of Law
Georgetown University Law Center

NB: "±" indicates that the hyperlink will take you to another site.

 

Home page
Topical index
Case studies index

9. Mergers: Introduction

 

11. Mergers: Horizontal

 

 

10. Market Definition

 

Reading and class notes
Significant precedents
H&R Block
Reference materials
Case studies

 
Primary Materials
Supplemental Materials

Reading and Class Notes

Reading and class notes

Unit 10 reading

Unit 10 class notes

 

Statutes and Guidelines

2010 Horizontal Merger Guidelines

Review

Section 4: Market Definition

 
Statutes and rules

± Clayton Act § 15, 15 U.S.C. § 25

Fed. R. Civ. P. 65 (Injunctions and Restraining Orders)

 

Seminal Cases

Seminal market definition cases

United States v. E.I. du Pont de Nemours & Co., 353 U.S. 586 (1957) (± Oyez)

See Unit 9 for more case materials

 

 

See Unit 9 for more case materials

United States v. H&R Block, Inc.

Transaction

H&R Block Inc., Press Release, H&R Block Announces Agreement to
Acquire TaxACT Digital Tax Preparation Business
(Oct. 13, 2010)

Agreement and Plan of Merger Among H&R Block, Inc., HRB Island Acquisition, Inc., 2SS Holdings, Inc. and the Other Parties Named Herein (dated as of Oct. 13, 2010)

Complaint and answer

Complaint, United States v. H&R Block, Inc., No.11-00948 (BAH)
(D.D.C. filed May 23, 2011)

U.S. Dept. of Justice, Antitrust Div., News Release, Justice Department
Files Antitrust Lawsuit to Stop H&R Block Inc. from Buying
TaxACT
(May 23, 2011)

Answer of Defendants H&R Block, Inc., 2SS Holdings, Inc., and
Ta IX L.P.
(July 7, 2011)

Docket sheet (downloaded Sept. 21, 2013) (closed)

± DOJ web site

See here for more case materials

Procedure

Standing Order for Civil Cases, United States v. H&R Block, Inc., No. 11-00948 (BAH) (D.D.C. May 24, 2011)

Minute Order, United States v. H&R Block, Inc., No. 11-00948 (BAH) (D.D.C. Aug. 4, 2011)

 

Order and supporting memorandum

Order, United States v. H&R Block, Inc., No. 11-00948 (BAH) (D.D.C. Oct. 31, 2011)

Memorandum Opinion, United States v. H&R Block, Inc., No. 11-00948 (BAH) (D.D.C. Nov. 10, 2011) (redacted public version)

 

Post-trial disposition

H&R Block Inc, Form 8-K (Nov. 14, 2011) (reporting that the TaxAct Agreement and Plan of Merger was terminated on Nov. 14, 2011)

InfoSpace, Inc., Press Release, InfoSpace to Acquire TaxACT (Jan. 9, 2012)

 

Reference Materials

Recent cases


History

± Gregory J. Werden, The History of Antitrust Market Delineation, 76 Marquette L. Rev. 123 (1992).

General commentary

± Malcolm B. Coate, Market Definition is Not Alchemy (Jan. 22, 2014).

± Malcolm B. Coate & Joseph J. Simons, Should the DOJ’s Controversial Approach to Market Definition Control Merger Litigation: The Case of U. S. v. H&R Block (Oct. 24, 2013).

± Louis Kaplow, Market Definition: Impossible and Counterproductive, 79 Antitrust L.J. 361 (2013).

± Louis Kaplow, Market Definition (May 15, 2013), fForthcoming in The Oxford Handbook of International Antitrust Economics (Roger D. Blair & D. Daniel Sokol, ed., 2013).

Organisation for Economic Co-operation and Development, Directorate for Financial and Enterprise Affairs Competition Committee,, Market Definition, Background note by the Secretariat (DAF/COMP(2012)13/REV1, Sept. 21, 2012).

Mark A. Lemley & Mark P. Mckenna, Is Pepsi Really a Substitute for Coke? Market Definition in Antitrust and IP, 100 Geo. L.J. 2055 (2012).

± Frank P. Maier-Rigaud & Ulrich Schwalbe, Market Definition (June 15, 2012).

± Malcolm B. Coate & Joseph J. Simons, In Defense of Market Definition (Feb. 14, 2012), final version at 57 Antitrust Bull. 667 (2012).

± Louis Kaplow, Market Definition and the Merger Guidelines (May 2011), final version at 39 Rev. Indus. Org. 107 (2011).

± Joseph Farrell & Carl Shapiro, Recapture, Pass-Through, and Market Definition, 76 Antitrust L.J. 585 (2010).

± Louis Kaplow, Why (Ever) Define Markets, 124 Harv. L. Rev. 437 (2010).

± Gregory J. Werden, Why (Ever) Define Markets? An Answer to Professor Kaplow (Feb. 13, 2012).

± Dennis W. Carlton, Market Definition: Use and Abuse, 3(1) Competition Pol'y Int'l 3 (Spring 2007).

± Jonathan B. Baker, Market Definition: An Analytical Overview (Nov. 2006), published in 74 Antitrust L.J. 129 (2007).

± Jonathan B. Baker & Timothy F. Bresnahan, Economic Evidence in Antitrust: Defining Markets and Measuring Market Power (Stanford Law and Economics Olin Working Paper No. 328 Sept. 2006), final version published in Handbook of Antitrust Economics 1 (Paolo Buccirossi ed., 2008).

± Gregory J. Werden, The 1982 Merger Guidelines and the Ascent of the Hypothetical Monopolist Paradigm (June 4, 2002), final version at 71 Antitrust L.J. 253 (2003).

± Gregory J. Werden., Market Delineation Algorithms Based on the Hypothetical Monopolist Paradigm (U.S. Dept. of Justice Antitrust Div. Economic Analysis Group Discussion Paper No. 02-8, July 27, 2002).

Gregory J. Werden, Market Delineation under the Merger Guidelines: A Tenth Anniversary Retrospective, 38 Antitrust Bull. 517 (1993).

Barry C. Harris & Joseph J. Simons, Focusing Market Definition: How Much Substitution is Enough, 12 Res. L. & Econ. 207 (1989).

± Gregory J. Werden, Market Delineation and the Justice Department's Merger Guidelines, 1983 Duke L. Rev. 514 (1983) .

Jury instructions

Final Jury Instructions, Deutscher Tennis Bund v. ATP Tour Inc., No. 07-CV-00178 (D. Del. Aug. 4, 2008) (market definition instructions)

Final Jury Instructions, Deutscher Tennis Bund v. ATP Tour Inc., No. 07-CV-00178 (D. Del. Aug. 4, 2008) (full set)

Commentary

 

Case Studies

H&R Block

H&R Block
(DOJ 2011)

Merger agreement

H&R Block Inc., Press Release, H&R Block Announces Agreement to Acquire TaxACT Digital Tax Preparation Business (Oct. 13, 2010)

Agreement and Plan of Merger among H&R Block, Inc., HRB Island Acquisition, Inc., 2Ss Holdings, Inc. and the Other Parties Named Herein (dated as of Oct. 13, 2010)

 

Complaint and answer

Complaint, United States v. H&R Block, Inc., No. 11-00948 (BAH) (D.D.C. filed May 23, 2011) )

Docket sheet (downloaded Sept. 21, 2013) (closed)

Answer of Defendants H&R Block, Inc., 2SS Holdings, Inc., and Ta IX L.P. (July 7, 2011)

Stipulated Protective Order (June 15, 2011)

 

Motion to transfer venue

Memorandum of Points and Authorities in Support of Defendants’ Motion to Transfer Venue (May 27, 2011)

Plaintiff’s Memorandum of Points and Authorities in Opposition to Defendants’ Motion to Transfer Venue (June 2, 2011)

Reply Memorandum in Further Support of Defendants’ Motion to Transfer (June 2, 2011)

Memorandum Opinion (June 6, 2011) (denying motion to transfer venue) (reported at 789 F. Supp. 2d 74)

Scheduling

Joint Meet and Confer Report (June 24, 2011)

Exhibit: Proposed Joint Scheduling and Case Management Order (June 24, 2011)

Supplemental Joint Meet and Confer Report (June 28, 2011)

Exhibit: Proposed Joint Scheduling and Case Management Order (June 28, 2011)

Second Supplemental Joint Meet and Confer Report (July 5, 2011)

Joint Scheduling and Case Management Order (June 28, 2011)

Standing Order for Civil Cases, United States v. H&R Block, Inc., No. 11-00948 (BAH) (D.D.C. May 24, 2011)

MINUTE ORDER (paperless) granting in part and denying in part Joint Motion for Order Regarding Proposed Hearing Length and Findings of Fact. For the hearing set to commence on September 6, 2011, the plaintiff and the defendants will each be limited to twenty-five (25) total hours of testimony for their respective cases-in-chief, which will not include their opening and closing statements, but will include direct testimony, cross-examination, and argument before the Court during the hearing. Additionally, the plaintiff will be entitled to no more than six (6) hours of total combined time for its rebuttal witnesses; defendants will have no more than three (3) hours of total combined time to cross-examine plaintiffs rebuttal witnesses. Each side shall have no more than one (1) hour for their respective opening statements and one (1) hour for their respective closing statements. The Court will not waive the requirements of Paragraph 11(a)(ix) of the Court's Standing Order, which requires the parties to submit, as part of the Joint Pre-Hearing Statement, a statement of facts that the parties have stipulated to, or have agreed are undisputed, or that the parties propose for stipulation. Such a statement will help the Court identify the areas of factual dispute and agreement in advance of the hearing. Finally, unless the parties are otherwise notified, the Court will convene the hearing from 9:30 AM to 12:30 PM and 1:45 PM to 5:00 PM, Monday through Friday, except that on September 13 and September 14, 2011, court will not be held due to the necessary attendance of the Judge at a meeting of the United States Sentencing Commission. Signed by Judge Beryl A. Howell on 8/4/2011. (lcbah2) (Entered: 08/04/2011)

Plaintiff's motion for a preliminary injunction

Plaintiff's Memorandum of Points and Authorities in Support of Its Motion for a Preliminary Injunction (Aug. 1, 2011; redacted Aug. 5, 2011; unsealed redacted version Dec. 9, 2011) (see ± DOJ web site for exhibits)

Defendants' Memorandum of Points and Authorities in Support of its Opposition to Plaintiff's Motion for a Preliminary Injunction (Aug. 12, 2011; unsealed redacted version Dec. 9, 2011)

Plaintiff's Reply Memorandum of Points and Authorities in Further Support of Its Motion for a Preliminary Injunction (Aug. 18, 2011; redacted Aug. 24, 2011; unsealed redacted version Dec. 9, 2012) (see ± DOJ web site for exhibits)

Plaintiff's motion in limine to preclude admission of defendants' proposed remedies

Plaintiff’s Motion in Limine to Preclude Admission of Defendants’ Proposed Remedies (Aug. 12, 2011)

Memorandum of Points and Authorities in Support of Plaintiff’s Motion in Limine to Preclude Admission of Defendants’ Proposed Remedies (Aug. 12, 2011)

Memorandum in Opposition to Plaintiff’s Motion In Limine (Aug. 18, 2011)

Exhibit A: Potential Remedy
Exhibit B: Declaration of Camela Grief
[Proposed] Order

Reply Memorandum In Support Of Plaintiff’s Motion In Limine to Preclude Admission of Defendants’ Proposed Remedies (Aug. 19, 2011)

Motion withdrawn (Sept. 2, 2011)

Plaintiff's motion in limine to exclude the 2011 litigation survey and limit defendants' expert report

Plaintiff's Memorandum of Points and Authorities in Support of Plaintiff's Motion In Limine to Exclude the 2011 Litigation Survey and Limit Defendants' Expert Report (Aug. 19, 2011; redacted Aug. 24, 2011; unsealed redacted version Dec. 9, 2011) (see DOJ web site for exhibits)

Defendants' Memorandum of Points and Authorities in Opposition to Plaintiff's "Motion in Limine to Exclude the 2011 Litigation Survey and Limit Defendants' Expert Report" (Aug. 24, 2011; unsealed version Dec. 9, 2011)

Plaintiff's Reply Memorandum in Support of Plaintiff's Motion In Limine to Exclude the 2011 Litigation Survey and Limit Defendants' Expert Report (Aug. 26; unsealed redacted version Dec. 9, 2011) (see DOJ web site for exhibits)

Memorandum Opinion and Order Denying Motion In Limine (Sept. 6, 2011) (unsealed on Dec. 8, 2011)

Expert declarations summarizing expected testimony

Plaintiff's experts:

Declaration of Frederick R. Warren-Boulton Summarizing Expected Direct Testimony (Sept. 1, 2011; unsealed Dec. 9, 2011) (U.S. economic expert)

Declaration of Ravi Dhar Summarizing Expected Direct Testimony (U.S. expert on 2011 Survey of TaxACT customers and the H&R Block Price Simulator Survey)

Expert Report of Ravi Dhar (August 19, 2011)

Declaration of Mark E. Zmijewski (Sept. 1, 2011; unsealed Dec. 9, 2011) (U.S. expert on efficiencies)

Defendants' expert:

Declaration of Dr. Christine Siegwarth Meyer (Sept. 1, 2011; unsealed Dec. 9, 2011)

Proposed findings of fact

Plaintiff’s Proposed Findings of Fact (Sept. 28, 2011; unsealed redacted version Dec. 9, 2011)

Defendants’ Proposed Findings of Fact (Sept. 28, 2011; unsealed redacted version Dec. 9, 2011)

Trial

Sept. 6 - 9, 12-13, 15, 19, Oct. 3
Trial transcripts to be released on PACER on March 26, 2012

Post-trial briefs

Plaintiff’s Post-Trial Memorandum (Oct. 2, 2011; unsealed redacted version Dec. 9, 2011)

Defendants’ Post-Trial Memorandum of Points and Authorities in Opposition to Permanent Injunction (Sept. 28, 2011; unsealed redacted version Dec. 9, 2011)

Disposition

Notice of Joint Stipulation of Facts in Lieu of Testimony (Sept. 2, 2011)

Memorandum Opinion (Nov. 10, 2011) (redacted)

Order (Oct. 31, 2011) (granting permanent injunction)

H&R Block Inc, Form 8-K (Nov. 14, 2011) (reporting that the TaxAct Agreement and Plan of Merger was terminated on Nov. 14, 2011)

± DOJ web site

Subsequent sale of TaxACT

InfoSpace, Inc., Press Release, InfoSpace to Acquire TaxACT (Jan. 9, 2012)

Commentary

± Malcolm B. Coate, Market Definition in Differentiated Goods When the Final Consumer Buys the Good: Insights from the H&R Block Case (Feb. 12, 2014).

± Joseph J. Simons & Malcolm B. Coate, Should DOJ’s Controversial Approach to Market Definition Control Merger Litigation, the Case of US v. H&R Block (Oct. 24, 2013).

James A. Keyte, United States v.H&R Block: The DOJ Invokes Brown Shoe to Shed the Oracle Albatross, Antitrust, Spring 2012, at 32.

 

9. Mergers: Introduction

11. Mergers: Horizontal