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The moderator, Tim Cornell (Clifford Chance), introduced the panelists and first turned to David Lawrence (U.S. Department of Justice) for his thoughts on the Vertical Merger Guidelines (Guidelines) from an enforcer’s standpoint.
Mr. Lawrence discussed why and how the Department of Justice prepared and issued the Guidelines. First, he explained that the new Guidelines were issued because the agency’s prior Non-Horizontal Merger Guidelines were not transparent and were misleading. He mentioned that the previous guidelines were not consistent with how officials enforced antitrust law. With the recently released Guidelines, the agencies aimed to accurately reflect and stay congruent with the agencies’ enforcement approach. Mr. Lawrence stated that the Federal Trade Commission and the Justice Department were able to release the Guidelines through inter-agency collaboration, policy submissions from interested parties, and clear direction from those at the top of the organizations. Although people had different views on certain policies, Mr. Lawrence explained that for each of those questions, the agencies asked, “Based on our experiences in career staff investigations, based on recent mergers, what did we do, how did we look at this?” He commented that that was an important lodestar to resolve those differences and put a complete document together.