The dangers of prematurely exercising operational control over an acquisition target, or at least appearing to operate organizational control, are highlighted by a Department of Justice Antitrust Division action announced yesterday against two particleboard suppliers that recently dropped their planned combination. Just five weeks ago, Flakeboard America Ltd. abandoned its proposed acquisition of rival SierraPine in the face of the government’s antitrust concerns. Now, the companies have agreed to pay millions to settle allegations that they engaged in premerger coordination, also known as “gun jumping,” in violation of both Sec. 7A of the Clayton Act and Sec. 1 of the Sherman Act.
Two unusual features of the United Kingdom’s merger control regime are that notification is voluntary and there is no ‘suspension’ obligation. This means that mergers can be – and routinely are – completed without notification to and/or approval by the Competition and Markets Authority (“CMA”).
In this article, I examine the CMA’s use of its new powers to impose interim measures in the case of completed mergers. Through these powers, the CMA can prevent or limit the integration of the merged businesses pending completion of the CMA’s merger review. Self-evidently, this can have significant commercial consequences for the merging parties, in particular the acquiring party.
Just over a year ago, I wrote (rather extensively) on the European Commission’s public consultation entitled “Towards more effective EU Merger Control” in which the Commission proposed to (i) expand its powers to review non-controlling minority interests and (ii) streamline the case referral system between the European Commission and NCAs.
Our regular readers will note that Mark Jones alerted them to the European Commission’s second public consultation on this subject. As Mark noted, the deadline for this consultation closes on 3 October 2014.
The purpose of this post is not to repeat Mark’s (or indeed my prior 2013 post). Rather I thought that it may be useful to put down some tho [...]
The FTC’s challenge to the now-consummated combination of Phoebe Putney Health System, Inc.—the operator of Phoebe Putney Memorial Hospital—and rival Palmyra Park Hospital, Inc. in Albany, Georgia, is headed back to administrative litigation. More than a year after announcing a tentative settlement in the case, the FTC has refused to grant final approval to the proposed consent order. On Friday, the Commission issued an order, returning the matter to Part III litigation to determine whether the acquisition reduced competition in the market for acute-care hospital services sold to commercial health plans in a six-county area, as alleged in the agency’s 2011 complaint.
The proposed settle [...]
On 9 July 2014, the European Commission published a White Paper setting out proposals to amend the EU merger control system. The proposed reform of the system is the most significant in the last 10 years and could have an impact on many corporate transactions.
The proposals deal with the following:
Within the span of about two weeks, each of the federal antitrust agencies has been handed a major win in their merger enforcement efforts.
Last Friday, it was the Federal Trade Commission’s turn. The U.S. district court in Boise ordered St. Luke’s Health System, Ltd.—the largest health care system in Idaho—to divest Saltzer Medical Group—the state’s largest independent, multi-specialty physician practice—after concluding that St. Luke’s 2012 acquisition of Saltzer violated Section 7 of the Clayton Act and the Idaho Competition Act. In that matter, the FTC and the State of Idaho joined a challenge initiated by private plaintiffs.
On January 8, the federal district court in San Fr [...]
Last week, the federal district court in San Francisco ruled that Bazaarvoice Inc.’s June 2012 acquisition of PowerReviews Inc. violated Sec. 7 of the Clayton Act. In a “necessarily lengthy Opinion,” the court concluded that the Department of Justice Antitrust Division prevailed in the liability phase of its case against the leading provider of online Ratings and Reviews platforms (R&R) over its acquisition of its primary competitor. A status conference has been set for January 22 to consider the remedy phase of the litigation. The court could order Bazaarvoice to divest PowerReviews assets to create a viable competitor, even though the merger was completed 18 months ago.
The Justice Depart [...]
Effective December 16, 2013, Hart-Scott-Rodino (HSR) coverage of exclusive licenses of patents will change. As HSR practitioners know well, the Federal Trade Commission’s Premerger Notification Office (PNO) has long-interpreted HSR to cover exclusive licenses as a reportable acquisition (assuming all other requirements are met) if the licensor did not retain any rights to “make, use or sell” under the patent. Now, the PNO’s formal rules will consider a patent license a reportable acquisition even if the licensor retains the right to manufacture—but solely for the licensee—or if the licensor retains the right to co-market, but, again, solely with the licensee. The PNO’s thinking [...]
On 5 December, the European Commission published a package of measures to reduce the administrative burden of EU merger control, which will apply as of 1 January 2014.
The package extends the scope of the simplified procedure for non-problematic cases. This means that more transactions may be notified using the Short Form CO, which will reduce the burden notwithstanding the fact the “Short” Form CO is still a fairly lengthy document. The European Commission considers that its proposed changes could allow up to 60-70% of all notified mergers to qualify for review under the simplified procedure, which is about 10% more than today.
The European Commission has also introduced various amendm [...]
Two of the most significant conferences on the antitrust calendar were held last week. Georgetown Law Center featured its Seventh Annual Global Antitrust Enforcement Symposium on September 25, and Fordham Law School’s 40th annual international antitrust law and policy conference took place on September 26 and 27.
FTC Chairwoman Edith Ramirez and William Baer, Assistant Attorney General at the Department of Justice Antitrust Division, delivered remarks on their latest enforcement priorities at both programs.
In case you missed these great programs, here are some brief summaries of the enforcers’ presentations.
Global Antitrust Enforcement
Chairwoman Ramirez kicked off the Georgetown prog [...]