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 [...]
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 [...]
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 [...]
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 [...]
