the yale law journal :
ups—standard through the s and s—is extremely rare today;
140
in in-
stances where agencies spot potential harm, they tend to impose conduct rem-
edies or require divestitures rather than block the deal outright.
141
The Obama
Administration took this approach with two of the largest vertical deals of the
last decade: Comcast/NBC and Ticketmaster/LiveNation. In each case, con-
sumer advocates opposed the deal
142
and warned that the tie-up would concen-
trate significant power in the hands of a single company,
143
which it could use
to engage in exclusionary practices, hike prices for consumers, and dock pay-
ments to content producers, such as TV screenwriters and musicians. Nonethe-
less, the DOJ attached certain behavioral conditions and required a minor di-
vestiture, ultimately approving both deals.
144
The district court held the
consent decrees to be in the public interest.
140. James B. Stewart, Why a Media Merger that Should Go Through Might Not, N.Y. TIMES
(Oct. , ), http://www.nytimes.com////business/economy/why-a-media
-merger-that-should-go-through-might-not.html [http://perma.cc/NTN-LBN] (“‘Over
the last to years, antitrust law has evolved to be almost completely indierent to verti-
cal mergers,’ said Tim Wu, an antitrust and internet expert at Columbia Law School . . . .”).
141. By imposing conduct remedies, the antitrust agencies set out behavioral conditions that the
merging parties must comply with, subject to agency oversight. By requiring divestitures,
the antitrust agencies ask the merging parties to sell o a part of their business to another
entity.
142. Martin H. Bosworth, Consumer Groups Oppose Comcast-NBC Merger, CONSUMER AFF., (Dec.
, ), http://www.consumeraairs.com/news///comcast_nbc.html [http://
perma.cc/N-MTKQ]; David Segal, Calling Almost Everyone’s Tune, N.Y.
TIMES (Apr.
, ), http://www.nytimes.com////business/ticket.html [http://perma.cc
/TT-FHYA] (“To say this new conglomerate has inspired fear in the live-concert business
doesn’t capture the extent of the quaking.”); Ethan Smith & Thomas Catan, Concert
Deal Wins Antitrust Approval, W
ALL ST. J. (Jan. , , : AM), http://www.wsj
.com/articles/SB [http://perma.cc/FWR
-WUSR].
143. As Bork pointed out, the vertical deals would not increase the market share of either compa-
ny. See B
ORK, supra note , at . In Ticketmaster/LiveNation’s case, the deal instead “cre-
ates one company that will have a hand in just about every corner of the music business,”
Smith & Catan, supra note , while in Comcast/NBC’s case, the merger created “a bil-
lion media behemoth that controls not just how television shows and movies are made but
how they are delivered to people’s homes,” Yinka Adegoke & Dan Levine, Comcast Completes
NBC Universal Merger, R
EUTERS (Jan. , , : AM), http://www.reuters.com/article
/us-comcast-nbc-idUSTRESWZ [http://perma.cc/EXC-PAU].
144. Press Release, Oce of Pub. Aairs, U.S. Dep’t of Justice, Justice Department Allows Com-
cast-NBCU Joint Venture To Proceed with Conditions (Jan. , ), http://www.just
ice.gov/opa/pr/justice-department-allows-comcast-nbcu-joint-venture-proceed-conditions
[http://perma.cc/FHZ-ALW]; Press Release, Oce of Pub. Aairs, U.S. Dep’t of Justice,
Justice Department Requires Ticketmaster Entertainment Inc. To Make Significant Changes
to Its Merger with Live Nation Inc. (Jan. , ), http://www.justice.gov/opa/pr/justice