Antitrust Division Workload Statistics Show Increase in Merger Filings, Enforcement Actions
The Department of Justice Antitrust Division opened 90 merger investigations and filed 13 merger cases in Fiscal Year (FY) 2011 (October 1, 2010, to September 30, 2011). The uptick in enforcement activity over the past couple of years was in response to an increase in merger activity.
Increase in HSR Filings
According to recently released workload statistics, summarizing Antitrust Division activities over the preceding 10-year period (FY 2002 – 2011), there were 1,450 premerger notifications under the Hart-Scott-Rodino (HSR) Act in FY 2011.
The number of HSR filings in FY 2011 was more than double the number in FY 2009 (716). From FY 2010 (1,166) to FY 2011, there was a more than 24 perc [...]
One to Watch: SCOTUS Consideration in Phoebe Putney?
The next Term may see significant SCOTUS consideration of the state action immunity, the first such case since 1992. The decision below in the defendants’ favor was quite plainly wrong, and so it might also become only the second antitrust case in twenty years in which the Court has ruled for a plaintiff. That would be a nice result since it would shield the plaintiff here, the Federal Trade Commission, from yet another unjustified indignity at the hands of the increasingly anti-enforcement courts of appeals (see, e.g., this recent decision).
To wit, while no petition has yet been filed, the Solicitor General has confirmed that he will seek review in FTC v. Phoebe Putney Health System, I [...]
U.S. Department of Justice Litigates to Block Two Mergers
The U.S. Department of Justice (“DOJ”) has blocked two mergers in the past several months, in each case after filing a lawsuit against the merging parties. The first case involved a relatively small transaction in the digital tax business involving H&R Block and 2nd Story Software. The second case was the high-profile proposed acquisition by AT&T of rival wireless telephone carrier T-Mobile USA. These cases illustrate an uptick in U.S. merger enforcement and an increased willingness on the part of the DOJ to challenge mergers in court. They also illustrate a resistance on the part of DOJ to accepting concessions proposed by parties seeking to obtain clearance of horizontal merge [...]
Deutsche Börse and NYSE Euronext Blame “Narrow” Market Definition for EC’s Objection to Combination
Despite a U.S. Department of Justice decision to clear the deal, the European Commission (EC) today blocked the proposed merger of NYSE Euronext and Deutsche Börse. The EC determined that the combination would have resulted in a quasi-monopoly in the area of European financial derivatives traded globally on exchanges. The two exchanges control more than 90% of global trade in these products, according to the EC.
In light of the EC decision, NYSE and Deutsche Börse said that they were in discussions to terminate their merger agreement.
“The merger between Deutsche Börse and NYSE Euronext would have led to a near-monopoly in European financial derivatives worldwide,” said Joaquín Almun [...]
A Look Back at the Enforcement Efforts of the Federal Antitrust Agencies in 2011
Having filed over 100 cases in the last 12 months, the Department of Justice Antitrust Division was especially active in 2011. The vast majority of those cases were criminal matters; however, 2011 will most likely be remembered for the Antitrust Division’s merger enforcement efforts.
The Antitrust Division reviewed a number of mega-mergers in 2011. While the most of merger filings were approved by the Justice Department without challenge or with conditions in a consent decree, there were notable court battles.
Among the most significant of these was the federal/state challenge to AT&T’s proposed $39 billion acquisition of T-Mobile USA Inc. from Deutsche Telekom. The parties ultimately ab [...]
U.S. Justice Department Conditionally Approves Combination of Stock Exchange Groups, European Review Still Pending
The prospects for the merger of Deutsche Börse AG and NYSE Euronext are looking a little brighter, since the U.S. Department of Justice Antitrust Division conditionally approved the transaction yesterday.
U.S. antitrust approval is a major hurdle; however, the combination of the two leading stock exchange groups, which was announced in February, still requires clearance by the European Commission (EC).
Although the Antitrust Division settlement would only resolve concerns over the merger’s impact on U.S. markets, it indicates that the parties are willing to make concessions to get the deal done. It is a positive sign for a deal that continues to evolve in an effort to satisfy EC competiti [...]
Proposed Combination of Tax Software Makers Violates Section 7 of the Clayton Act
The federal district court in Washington, D.C. yesterday released its Memorandum Opinion explaining its October 31 order enjoining H&R Block, Inc.’s proposed acquisition of 2SS Holdings, Inc.—the maker of “TaxACT” tax preparation software.
The court took a traditional approach in reviewing the merger and concluded that the transaction, which would have combined the second and third-largest providers of digital do-it-yourself (DDIY) tax preparation products, violates Section 7 of the Clayton Act. It began by defining the relevant market. After determining that the Department of Justice made out its prima facie case of anticompetitive effects based on market concentration, the court co [...]
AT&T/T-Mobile Deal, Antitrust Division Regional Office Closures Addressed at Justice Department Oversight Hearing
While Attorney General Eric Holder spent much of his time at today’s Senate Judiciary Committee Department of Justice Oversight hearing responding to question’s about the “Fast and Furious” law enforcement operation, he also was asked to provide his thoughts on some recent developments at the Antitrust Division.
Senator Herb Kohl (D-WI), chairman of the Senate Antitrust, Competition Policy and Consumer Rights panel, questioned the Attorney General on the Justice Department’s readiness to pursue its court challenge to block AT&T Inc.’s planned acquisition of T-Mobile USA, Inc. The Senator sought confirmation from the Attorney General that the Justice Department was prepared to tak [...]
FTC Needs To Stop The Express Scripts-Medco Merger
Antitrust enforcement has certainly been revived at the Obama Justice Department. With recent cases against Comcast/NBC, health insurers and telecom firms, the DOJ has begun to demonstrate why antitrust enforcement is a critical bulwark for competitive markets.
No area is in greater need of an infusion of sound enforcement than healthcare. The healthcare debate demonstrated the dysfunction of healthcare intermediary markets — health insurer and pharmacy benefit manager (PBM) markets are highly concentrated and largely unregulated, and massive consolidation of health insurers and PBMs over the past decade has led to a long list of deceptive and anticompetitive practices.
Fortunately, the DO [...]
Customers’ Efforts to Use Arbitration to Challenge AT&T/T-Mobile Merger Fail
Federal district courts around the country have blocked AT&T Mobility LLC customers from pursuing arbitration to challenge the merger of AT&T Mobility and T-Mobile USA Inc.—a transaction valued at approximately $39 billion.
At least four federal district courts have granted AT&T Mobility’s motions for preliminary injunctions, and a fifth federal district court did not reach the motion for preliminary injunction but denied a customer’s motion to compel arbitration. The courts have ruled that AT&T is likely to succeed on the merits of its claim the arbitration demands exceed the scope of the arbitration agreement.
More than 1,000 AT&T Mobility customers have filed demands with the Amer [...]
