I was talking with a friend recently, a mortgage banking executive, who expressed amazement at the extent to which the government seemed to be allowing mergers of big banks that would previously have raised significant antitrust concerns. I had not given it a great deal of thought, and I must admit that I’ve been occupied with other issues, so I was pleased to note that the ABA’s Section of Antitrust Law has published two short articles regarding antitrust enforcement relating to mergers in an era of financial crisis.

The first, Marc Winerman’s “Antitrust and the Crisis of ’07,” tells the tale of Teddy Roosevelt’s involvement in the 1907 acquisition by U.S. Steel of Tennessee Coal and Iron, purportedly calculated to avert a broad U.S. financial crisis. This little history is generally accessible, even to those who do not practice law.

The second, “Bank Consolidation Caused by the Financial Crisis: How Should the Antitrust Division Review ‘Shotgun Marriages,’” is by Jonathan M. Rich and Thomas G. Scriven. This one addresses how antitrust enforcers are dealing today with pre-merger antitrust review in situations where the government is attempting keep financial institutions from failing. This one is harder to read if you aren’t an antitrust attorney, but the gist of it will be pretty clear to most readers. (Email me if you want to know what the Hart-Scott-Rodino and Tunney Acts are about.)

A key contrast between the (19)’07 and (20)’08 crises is the sophistication of the tools available to the government both in terms of antitrust enforcement and of banking regulation.

Why would this matter to MLSs and REALTORĀ® Associations? It might not, really, but for the fact that such organizations appear to be under close scrutiny by FTC and Department of Justice. I think the message of the articles for us is “Don’t expect a financial crisis to give anyone a free pass where antitrust enforcement is concerned.”

Of course, no one knows how the change in presidential administrations will impact all of this. I’m waiting with bated breath to find out.

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