Law concepts and applications

¶ … Private University is selling a share, or something else. At the outset of the Act, "security" is defined as "any note, stock, treasury stock, security future, security-based swap, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate…" and many others are subject to the law. The key is that the security creates a share of income for the holder, whether in the form of debt or equity. Options for later purchase are also included in the definition of security.

The asset in question is a "share" that entitles the bearer to college credits in any school at the future date. A college credit is not a claim to a cash flow, nor it is claim to equity. Therefore, this is not a security. Rather, it is a coupon by which a product can later be acquired. There is no difference between this asset and a gift card from Starbucks that entitles the bearer to a latte at a future date.

If the university is a for-profit entity, this does not change the answer. This "share" is still a gift certificate, not a security. There is no underlying interest. The "share" is redeemable for college credit, which is neither ownership nor cash flow. Instead, college credit is the service that this company produces. The right to purchase a product at a later date is not a security.

2. The best way to determine whether or not the acquisition of T-Mobile by AT&T would have constituted a violation of antitrust laws is to examine the effect of that proposed acquisition on the competitiveness of the industry. The Federal Trade Commission (FTC) notes that antitrust laws as proscribing unlawful mergers in general terms, subject to the interpretation of the relevant authorities. The Sherman Act, it notes, "outlaws every contract, combination, or conspiracy in restriction of trade," specifically with respect to moves that would take a company closer to monopoly. A merger like this one is not a per se violation of the Sherman Act, so it is subject to some subjective evaluation.

Section 7 of the Clayton Act "prohibits mergers and acquisitions when the effect may be substantially to lessen competition, or tend to create a monopoly" (FTC, 2013). The FTC and Department of Justice (DOJ) work with their Horizontal Merger Guidelines. The first step in these guidelines with respect to mergers is to define the market, since the agencies want to prevent monopoly positions in any market. A market is defined in terms of potential substitution factors within that area (FTC, 2013). With respect to the telecommunications business in the United States, all of the major firms are national in scope and that is the case with the two companies in this merger as well. There are no viable substitute products.

The agencies also consider market concentration, which they view as "often one useful indicator of likely competitive effects of a merger." Thus, the regulators are concerned about a company having so much market power than they can exert undue influence on that market to the detriment of competition. The agencies use the Herfindahl-Hirschmann Index, a common measure of industry concentration. There are two other major players in the U.S. market, those being Verizon and Sprint. It was noted that in 96 of the top 100 markets, the HHI of the mobile industry is over 2500, which is considered to be a concentrated market. When a market is concentrated, the DoJ typically does not allow mergers that would increase the HHI more than a further 200 points, as anything beyond that threshold would increase market power for the acquiring firm. The increase with this deal would be 700, too much for the DoJ's threshold (Stewart, 2011). Some observers have argued that there are alternatives -- landlines, prepaid, small providers -- which would mean that the DoJ's interpretation of the market as the U.S. mobile communications market is incorrect. However, I see these as poor substitutes -- small companies do not offer nationwide coverage, landlines are not the same thing at all. Only prepaid comes close, but that is a different market. Thus, the DoJ's understanding of the market is reasonable. Because of that, the HHI indicator is clear that this merger would not meet the DoJ's standards. It would leave the industry in an oligopoly state, with the # 3 (Sprint) being a distant third behind AT&T and Verizon. This brings up the specter of duopoly, since this industry requires massive infrastructure investment, which would ultimately make it impossible for Sprint to compete with its much larger rivals. Allowing this merger would set that course of action in motion. With mergers, the standard for rejection is not that there is evidence of uncompetitive behavior, but whether the merger creates the conditions for uncompetitive behavior and that condition is met with this proposed merger. I would reject the application to merger AT&T and T-Mobile.

Outline

Introduction

The concept would be a trademark violation -- perhaps involving a foreign country where rules and norms are different

Ethical outlooks

Deontological

Americans are bound by American law, regardless of local law or culture

Utilitarian

The employee has a mandate to get the contract, which is in the best interests of pretty much every stakeholder.