Potential Competitors’ Antitrust Standing Against Preemptive Acquisitions

This Article revolves around potential competitors’ “antitrust standing” rights in private merger litigation, especially against preemptive acquisitions. It builds upon various cases in which courts had explicitly recognized that a potential competitor has standing to challenge an allegedly anticompetitive merger that foreclosed it from entering the market dominated by an incumbent firm. Such mergers can be categorized as “strategic preemptive acquisitions.” Specifically, the courts held in these particular cases that the potential competitor’s “antitrust injury,” that is—exclusion from the relevant market—stems from the incumbent’s intentional and strategic acquisition of a company or set of assets that were required for the successful entry of the potential competitor into the market. Accordingly, it was held that the “antitrust injury” that the potential competitor suffered is inseparable from the alleged harm to competition caused by the merger, and thus, potential competitors are eligible to bring antitrust claims against such strategic pre­emptive acquisitions.

Hence, the main objective of this Article is to provide a coherent framework, supported caselaw, that aims to assist courts in the analysis of potential competitors’ standing rights against strategic preemptive acquisitions.