September 19, 2010
Will We Ever Get A Merger Case In The Supreme Court?
Posted by David Zaring

I've been reflecting on some observations made by Thom Lambert and Josh Wright at a recent conference on the Roberts Court's business cases (more about that here).  The increasing number of antitrust cases in the Supreme Court (a number up from basically zero) is an expression of rare interest by judges who have very little background in business.  However, none of these cases turned on merger approvals, and, indeed, the Court hasn't heard a merger case for decades.  Decades!  The subject that most excites the part of the legal establishment that does business law, and the Supreme Court has had nothing to say about it.  How can this be?

As Thom and Josh could tell you, there are systematic reasons to doubt that the Court will ever hear another merger case.  Modern mergers, which require a lot of lined up financing, and money that can only be committed for so long, would have to last through agency review, a denial, appeal to an appellate court, a loss there, cert, and the opinion.  Any blocked merger participants would have to stick to their guns, and get their banks to stick to them throughout this process, for a long time.  And the alternative would be to settle with the government and get something - when the alternative is maybe nothing - done.

It takes a real commitment to a merger, by a possibility self-financed acquirer, to hit stop for that long.  But it suggests that the next merger case the Supreme Court hears, when it is staffed with people with little patience for Warren and Burger Court jurisprudence, even if they aren't exactly corporate lawyers, could be a doozy.  And that it might take something pretty rare in M&A, a test case, ginned up by lawyers instead of bankers, to make it happen.

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