Antitrust Article: Ticklish fantasies, Expository excess in deal documents hobbles dealmaking and waves a red flag at regulators
11/29/2004
Written by Mintz Levin senior counsel, Yee Wah Chin, November 19, 2004, for TheDeal.com.
Deals are made to improve the parties' competitive positions. The parties seek market share, cost efficiencies, additional capabilities, an edge over the competition. For many a dealmaker, it would be wonderful if the deal achieved the ultimate prize in competitive positions - a monopoly. But the antitrust laws are intended to prevent the creation of monopoly by transaction. Moreover, the reality is that relatively few deals have the potential to create a monopolistic position. You might not realize that, however, from reading some deal documents. It is not uncommon to see an offering memorandum to potential buyers describing a business as dominant in its market or an internal deal analysis claiming the transaction will consolidate major players and ensure market dominance.
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