with other evidence.[1] Complex economic theories are simply not comprehensible to many specialists like myself, let alone to a generalist.
Moreover, framing a trial strategy around a story (as opposed to a formula) enables the introduction of more non-price evidence (i.e., evidence respecting effects on quality and safety), which gives courts more latitude. The FTC’s recent loss in the Ovation litigation proves this point: there, the court viewed price elasticity as the trump card. This meant the court could neither account for the transaction’s non-price effects on things like quality, safety, and innovation, or hold (as other courts have done) that functional interchangeability trumped price elasticity.[2]
Additionally, as James Langenfeld has observed, simulation studies inevitably include assumptions that may or may not be accurate.[3] If they are inaccurate, the result of the study will be inaccurate.
What are the ingredients of a good story? I discussed many of those elements more generally in my remarks before the ABA’s Masters Course in September and won’t
- ↑ Vaughn R. Walker, Merger Trials: Looking for the Third Dimension, 5 Competition Policy International 1 (Spring 2009). See also Leegin Creative Leather Prods. v. PSKS, Inc., 551 U.S. 877, 914-15 (2007) (Breyer, J., dissenting) (opining that “economics can, and should, inform antitrust law. But antitrust law cannot, and should not, precisely replicate economists’ (sometimes conflicting) views.”).
- ↑ See, e.g., FTC v. Arch Coal, Inc., 329 F. Supp. 2d 109 (D.D.C. 2004); In re Super Premium Ice Cream Distribution Antitrust Litig., 691 F. Supp. 1262 (N.D. Cal. 1988), aff’d sub nom. Haagen-Dazs Co. v. Double Rainbow Gourmet Ice Creams, Inc., 895 F.2d 1417 (9th Cir. 1990).
- ↑ Robert H. Lande and James Langenfeld, The Evolution of Federal Merger Policy, ANTITRUST (ABA) 5 (Spring 1997).
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