The Chinese Ministry of Commerce (“MOFCOM“) has stepped up its merger control activities on many fronts in recent weeks, issuing ground-breaking decisions in the Glencore/Xstrata and Marubeni/Gavilon cases and circulating draft procedural rules for public consultation on merger remedies and on dealing with straightforward merger control cases.

The new decisions
On April 16, 2013, MOFCOM issued approval for Glencore’s acquisition of Xstrata subject to conditions. Less than a week later, on April 22, it did likewise for the takeover of Gavilon by Marubeni.

Overall MOFCOM’s approach in both transactions was remarkably similar. However, there were also some key differences.

Common featur [...]

I often feel a certain deflation after the Supreme Court decides an antitrust case.  After watching a case for months, prognosticating about it with other antitrusters, reading umpteen blog posts, reading the briefs if you’re into it and even some amici briefs if you’re really into it, the Court then rules one way or the other, and usually tailors its opinion pretty narrowly, breaking no meaningfully new ground.  I suppose many will have that feeling about Tuesday’s decision in Federal Trade Commission v. Phoebe Putney Mem. Hosp. Sys., and some are already saying that Justice Sotomayor’s brief opinion for a unanimous Court is just a narrow application of garden variety state action [...]

In Consolidation in Health Care Markets: A Review of the Literature, authors David Balto and James Kovacs in a study funded by and submitted to the Robert Woods Johnson Foundation discuss the recent literature concerning consolidation across various health care markets.

The paper focuses on consolidation of hospital, provider, and health insurance markets with the goal of understanding the impact consolidation has on health care prices, quality of care, and overall costs.  The paper seeks to provide an overview of the key research and present findings in different areas of healthcare to facilitate further investigation.

The authors find that while there is consolidation across many heal [...]

My partner Lee Van Voorhis in Washington drafted some thoughts on this transaction, which I thought would be of interest to the Kluwer readership.

DOJ Sues to Block Further Anheuser-Busch InBev/Grupo Modelo Linkage

On January 31, 2013, the Antitrust Division of the Department of Justice (“DOJ”) announced that it filed a complaint in federal district court seeking to block Anheuser Busch InBev (“ABI”) from acquiring the portion of Grupo Modelo (“Modelo”) it does not already own. The challenge highlights the importance of company documents, the risks of an upfront remedy and other antitrust tips for merging parties.

The Complaint’s allegations

ABI currently has a 43 percent voting [...]

The Federal Trade Commission’s investigation of the now-abandoned merger between Integrated Device Technologies and PLX Technology was the topic of remarks delivered by FTC Commissioner Julie Brill at Skadden’s and Compass/Lexecon’s annual “Antitrust in the Technology Sector” program in Palo Alto, California, on January 28. “The issues raised by IDT/PLX spanned the Merger Guidelines,” Brill said.

In December 2012, the FTC issued an administrative complaint seeking to prevent Integrated Device Technology’s proposed $330 million acquisition of PLX Technology, Inc. The FTC’s complaint alleged that the combined company would possess a near-monopoly on the production of PCIe swit [...]

My U.S. colleagues Lee van Voorhis and Brian Rafkin wrote an excellent client alert on the Bosch case and I asked them to prepare the following short summary for the Kluwer readership:

On November 26, 2012, the FTC and Robert Bosch GmbH entered into a Consent Agreement that resolved the FTC’s inquiry into Bosch’s $1 billion acquisition of SPX Services. As part of the Consent Agreement the FTC required that Bosch agree to license on FRAND terms certain SPX patents. This is the first case where the FTC alleged an antitrust violation where a patent owner sought injunctions against willing licensees of FRAND-encumbered standard-essential patents. Moreover, the FTC obtained a consent agreemen [...]

What would likely be the last major acquisition in the car rental industry may soon be completed, with the blessing of the Federal Trade Commission. The pending acquisition of Dollar Thrifty Automotive Group, Inc. by Hertz Global Holdings, Inc., currently under review by the FTC, would cement the positions of the three major car rental companies by combining the second and fourth largest competitors.

Completion of the transaction would bring to a close years of consolidation in the industry. Antitrust approval of a combination of any of the three remaining firms—Enterprise Holdings, Inc., Avis Budget Group, Inc., and Hertz—would be highly unlikely.

Hertz announced on October 18 that it [...]

On Friday morning the FTC announced that it had closed its investigation of Universal Music Group’s acquisition of EMI’s recorded music division.  The Commission will not seek any concessions or take other action.  Elsewhere I’ve written and said that I think the merger is probably awfully anticompetitive and that it should be blocked completely.

A few thoughts.

From any older-fashioned structuralist, Philadelphia-National-Bank sort of perspective, the merger looks pretty illegal.  It is in effect a world-wide 4-to-3.  In U.S. markets the existing concentration and the increase in concentration are well in the range of likely anticompetitive effect under the traditional Merger Gu [...]

More than four years after Polypore International Inc. acquired rival battery separator manufacturer Microporous Products L.P., the U.S. Court of Appeals in Atlanta has determined that the transaction was anticompetitive. The appellate court yesterday upheld a December 2010 opinion of the Federal Trade Commission, which held that the that the merger of the two producers of battery separators—membranes placed between the positive and negatively-charged plates in batteries to prevent electrical short circuits—for flooded lead-acid batteries was illegal in three of the four North American markets identified in the agency’s complaint.

FTC Complaint

According to the FTC’s 2008 complaint, th [...]

Merger challenges are rare in Canada.  The last contested merger case in Canada was in 2005.  Typically, concerns about a prospective merger are resolved in negotiations between the Commissioner of Competition (the “Commissioner”) and the acquiring party, with some form of partial divestiture the usual remedy required.

As such, it was a major development when the Commissioner applied to the Competition Tribunal (the “Tribunal”) in January 2011 to prohibit the acquisition by CCS Corporation (“CCS”) of the shares of Complete Environmental Inc. (“Complete”) and its wholly-owned subsidiary Babkirk Land Services Inc. (“BLS”). The Tribunal is responsible for adjudicating merg [...]