James DeHoog, et al. v. Anheuser-Busch InBev SA/NV, et al.

In the over forty-years since this Court has issued a decision interpreting § 7 of the Clayton Act, a trend in unprecedented concentration has gripped a multitude of industries in the United States. Should this Court re-affirm its commitment to the structural evaluation of mergers and acquisitions under § 7 of the Clayton Antitrust Act, 15 U.S.C. § 18, as set forth in this Court’s decision in Brown Shoe Co., v. United States, 370 U.S. 294 (1962) and its progeny?

To state a plausible claim for relief under § 7 of the Clayton Antitrust Act, 15 U.S.C. § 18, must a plaintiff allege that the acquisition increases the market share of the acquiring entity (or any firm) in the relevant market?

This Court’s decisions in United States v. El Paso Natural Gas Company, 376 U.S. 651 (1964), United States v. Penn-Olin Chemical Co., 378 U.S. 158 (1964), and United States v. Falstaff Brewing Co., 410 U.S. 526 (1973), which develop the antitrust doctrine of potential competition, establish that an acquisition that eliminates a potential competitor “exercising present influence on the market” may be illegal under § 7 of the Clayton Act, 15 U.S.C. § 18, even though such an acquisition has no impact on existing market concentration. Is the Ninth Circuit’s published decision — that the elimination of an actual competitor in a market does not state a claim under § 7 of the Clayton Act if there is no corresponding increase in market concentration—consistent with this Court’s decision in El Paso Natural Gas?