DOJ Deputy Assistant AG David Gelfand Delivers Remarks on Economics and Merger Analysis | Practical Law

DOJ Deputy Assistant AG David Gelfand Delivers Remarks on Economics and Merger Analysis | Practical Law

Department of Justice (DOJ) Deputy Assistant Attorney General David Gelfand delivered remarks on the role economics plays in merger analysis and how attorneys should present economic evidence to the DOJ at the Bates White Antitrust Conference.

DOJ Deputy Assistant AG David Gelfand Delivers Remarks on Economics and Merger Analysis

by Practical Law Antitrust
Published on 09 Jun 2016USA (National/Federal)
Department of Justice (DOJ) Deputy Assistant Attorney General David Gelfand delivered remarks on the role economics plays in merger analysis and how attorneys should present economic evidence to the DOJ at the Bates White Antitrust Conference.
On June 7, 2016, DOJ Deputy Assistant AG David Gelfand spoke at the Bates White Antitrust Conference on the importance of economics in merger analysis. Gelfand explained that economist expertise can be used to:
  • Determine how often companies interact in the market.
  • Evaluate the closeness of competition and bidding behavior.
  • Help attorneys understand how competition works.
  • Develop theories of harm.
  • Assess efficiency arguments.
Gelfand presented several tips for how attorneys should approach interactions with DOJ economists and lawyers. Attorneys meeting with the DOJ should:
  • Demonstrate that data and conclusions are supported by accepted economic methods.
  • Explain economic analysis in simple terms when presenting to DOJ lawyers and include the source of the information.
  • Be candid and credible. Do not try to trick the DOJ.
  • Give the DOJ the information and time it needs to test and verify presented economic work.
  • Use charts and pictures instead of text slides.
  • Be wary of using unusual or customized market analysis methods.
  • Do not pick and choose data from market analysis that may seem statistically significant but was not objectively arrived upon.
  • Do not substitute economic analysis for other evidence in a case, such as product characteristics, distinct customers, and industry opinion. Judges are more likely to be influenced by non-economic evidence and will look to that evidence if there is a battle of the experts.
For more on economics in antitrust analysis, see Practice Note, Engaging an Economist in an Antitrust Matter.