Antitrust Suits by Targets of Tender Offers

We explore in this Article the basis and consequences of the target’s suit under the antitrust laws. We approach the question from the perspective of federal antitrust law and state corporation law.

We argue in Part I that the target is a singularly poor “private attorney general” because it is a beneficiary, not a victim, of any violation. An antitrust suit thus must be understood as an attempt by managers to defend their own positions, not as an attempt to vindicate the public interest. In the jargon of antitrust, the target is not a victim of “antitrust injury” and therefore is not entitled to sue for damages or an injunction. We proceed in Part II to study the consequences of defense for shareholders. We show there that shareholders are entitled, under state law, to any benefits that flow from tender offers; managers are not free to pursue their own conceptions of the public interest to the detriment of investors.