Public shareholders likely have suffered billions of dollars in losses in recent years as a result of collusion among potential purchasers in change-of-control transactions. Unfortunately, the federal courts have been unable to devise an appropriate antitrust approach to collusion in change-of-control transactions. This article proposes a new approach to the antitrust regulation of the market for the control of public and private companies. Collusion among purchasers in that market has occurred in nearly every American industry The proposed approach will effectively deter the three types of anticompetitive conduct most likely to occur in these circumstances: (1) express agreements to allocate bids among potential purchasers, (2) implicit bid rigging by potential purchasers, and (3) consortiums among potential purchasers to submit single bids in company auctions. This Article illustrates the advantages of the proposed approach by applying it to "going private" transactions, which in recent years have become the most popular—and the most controversial—of all types of acquisitions.
Thomas A. Piraino Jr, The Antitrust Implications of "Going Private" and Other Changes of Corporate Control, 49 B.C.L. Rev. 971 (2008), http://lawdigitalcommons.bc.edu/bclr/vol49/iss4/2