Since the Supreme Court's landmark decision in International Shoe Co. v. FTC in 1930, courts have widely applied the Failing Company Defense to mergers involving failing companies. The Failing Company Defense permits an otherwise anticompetitive merger or acquisition if the involved parties can demonstrate that, but for the transaction, the acquired firm would fail. The most widely accepted version of the Failing Company Defense is that promulgated by the Department of Justice and the Federal T...
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