The Harvard Law School Forum on Corporate Governance https://corpgov.law.harvard.edu The leading online blog in the fields of corporate governance and financial regulation. Wed, 08 Apr 2026 11:32:13 +0000 en-US hourly 1 https://wordpress.org/?v=6.5.8 https://corpgov.law.harvard.edu/wp-content/uploads/2024/02/cropped-photography-4-e1706898544564-1-32x32.png Why Common Ownership Is Not an Antitrust Problem – The Harvard Law School Forum on Corporate Governance https://corpgov.law.harvard.edu 32 32 Why Common Ownership Is Not an Antitrust Problem https://corpgov.law.harvard.edu/2018/12/04/why-common-ownership-is-not-an-antitrust-problem/?utm_source=rss&utm_medium=rss&utm_campaign=why-common-ownership-is-not-an-antitrust-problem https://corpgov.law.harvard.edu/2018/12/04/why-common-ownership-is-not-an-antitrust-problem/#comments Tue, 04 Dec 2018 14:27:24 +0000 https://corpgov.law.harvard.edu/?p=113456?d=20181204092724EST Posted by Douglas H. Ginsburg (U.S. Court of Appeals), on Tuesday, December 4, 2018
Editor's Note:

Douglas H. Ginsburg is a Judge of U.S. Court of Appeals for the District of Columbia Circuit and Professor of Law at the Antonin Scalia Law School, George Mason University. This post is based on his recent co-authored article, forthcoming in Frederic Jenny: Standing Up for Convergence and Relevance in Antitrust, Liber Amicorum – Volume II (Concurrences, 2019). Related research from the Program on Corporate Governance includes Index Funds and the Future of Corporate Governance: Theory, Evidence, and Policy by Lucian Bebchuk and Scott Hirst (discussed on the Forum here); The Agency Problems of Institutional Investors by Lucian Bebchuk, Alma Cohen, and Scott Hirst (discussed on the Forum here); Horizontal Shareholding (discussed on the Forum here); and New Evidence, Proofs, and Legal Theories on Horizontal Shareholding (discussed on the Forum here), both by Einer Elhauge.

More than 100 million Americans now hold a stake in a mutual fund, ETF, or closed-end fund. (2018 Investment Company Factbook, at i, 34.) Those funds have an aggregate value of $22 trillion. (Id.) (For simplicity, we refer herein to all of these investments as “mutual funds.”) Because a few families of mutual funds have significant holdings in many of the same companies, legal and economic scholars have debated whether the funds’ “common ownership” impairs competition among their portfolio companies, in violation of the antitrust laws. The U.S. antitrust agencies—the U.S. Department of Justice Antitrust Division and the Federal Trade Commission—define common ownership as “the simultaneous ownership of stock in competing companies by a single investor, where none of the stock holdings is large enough to give the owner control of any of those companies.” (See Note to the OECD by the United States at ¶ 1.)

(more…)

]]> https://corpgov.law.harvard.edu/2018/12/04/why-common-ownership-is-not-an-antitrust-problem/feed/ 2