In Class Merger Simulation

Most years, I try to teach merger law through an extended in class simulation.  Its my way of forcing the students to actively learn and apply the material rather than passively read and take notes in class.  It depends of course on whether there is a good pending merger case or investigation in an industry that is reasonably accessible and with a decent amount of publicly available information.  Past years I did the United-Continental merger and the ATT-T Mobile merger.

This year was beer something I was confident the students know a fair bit about.  I divided the class into thirds, 1/3 for the government and 2/3 for the defendants which always sounded about right from past real world experience.  Each team had issue specialists assigned to market definition/market power; theories of harm; barriers to entry; efficiencies and failing firm (when relevant).  Besides the class book readings, I assigned the sections of the Guidelines for each student's issues and the complaint DOJ filed against the InBev-Grupo Mondelo merger.  Over the course of 4-5 classes, I gave very brief comments about each of the key issues in modern merger analysis and described a key case or two.  The rest of the time was for the groups to work together and develop their positions.  One class was all intra-group discussion, part of a later class an informal inter-group conversation where each side could ask the other for more information and their tentative positions on each issues.  The final class was a more formal presentation by the defendants (with power points) to the government why they shouldn't sue, a response from the government, and negotiations over remedies in lieu of litigation.  I served as the judge waiting to deliver my opinion if the parties did not reach an agreement. In the end, they reached a tentative consent decree that closely matched the later agreement that is apparently going to resolve the dispute in the real world.

Every year I was impressed with the professionalism and the seriousness with which the students take their roles.  I also particularly appreciated the many exhibits that both sides had for their presentations and the spirited debate over whether hard liquor, wine, hard cider, craft beers, home brew, and something called Bud Light Lime-a-rita were part of the relevant market.