The LATEST: FTC “Second Requests” to be Narrower in Scope under Ohlhausen’s Leadership

Transactions that meet the Hart-Scott-Rodino thresholds for notification must be reported to the Federal Trade Commission (“FTC”) and Department of Justice. Where a notified transaction raises competition concerns, the reviewing agency may decide to launch an in-depth investigation and request additional information from the merging parties, known as a “Second Request,” which can take several months and cost companies millions of dollars to fully respond. Under FTC Acting Chairwoman Maureen Ohlhausen’s leadership, however, the burden of a Second Request may decrease, as she intends to narrow their scope.

What Happened:

  • Acting Chairwoman Ohlhausen has signaled that Second Requests will be more limited under her leadership, based on comments made on February 15, 2017 at a Washington conference.
  • The standard for initiating a Second Request will not change. However, once initiated, Second Requests will be narrower in scope, in terms of markets assessed and data requested from companies.

What this Means:

  • The standard used by the FTC to initiate such investigations will not change; thus, complex transactions raising competition concerns will likely still face a Second Request.
  • However, the time and cost associated with complying with a Second Request may be reduced, which will be good news for companies who may face a shorter review at a lower cost.
  • This business-friendly approach is consistent with Commissioner Ohlhausen’s guiding principles of “regulatory humility, […] the power of competitive markets, and a devotion to empiricism” and her objective to “minimiz[e] the burdens on legitimate businesses”. As such, it may be one of further changes to come in FTC enforcement.

The FTC’s Path Ahead.

Statement of Acting FTC Chairman Ohlhausen on Appointment by President Trump.

Third Circuit Upholds Dismissal of Indirect Purchaser Class in Auto Transmission Case, Revives Individual Claims

On February 9, the US Court of Appeals for the Third Circuit upheld a ruling by the US District Court for the District of Delaware that indirect purchasers of Class 8 transmissions did not meet the requirements for class certification. The Third Circuit found that only the individual claims may proceed in the case. The opinion is significant because it reaffirms the difficulty indirect purchaser plaintiffs face when attempting to certify a class.

Read the full article here.

THE LATEST: Employee “No-Poaching” Agreements Remain in the Antitrust Crosshairs

There have been a series of investigations, class action suits and high value settlements involving agreements not to solicit employees. In addition, the Department of Justice (DOJ) Antitrust Division made a splash a few months ago when it announced that it would criminally investigate and prosecute employers that engage in certain “naked” no-poach or wage-fixing agreements.

WHAT HAPPENED:

  • Employees filed a civil class action against the Carl’s Jr. hamburger chain because of a no-hire provision in its franchisee agreements.
  • The plaintiffs allege that Carl Karcher Enterprises (CKE), the franchisor, includes the no-hire provisions in its standard agreement to prevent its restaurants from hiring each other’s shift leaders. According to the complaint, the clause appears in the same part of the agreement that also prevents franchisees from competing for each other’s customers.

WHAT THIS MEANS:

  • The plaintiffs’ bar continues to view employee no-hire/non-solicitation agreements as a profitable area to bring class actions.
  • The DOJ’s policy guidance states that only “naked” agreements among employers will justify criminal enforcement. This means agreements that are not ancillary to some other joint competitive activity. Here, the restraint is arguably ancillary to operating a franchise chain.
  • Plaintiffs’ success likely will hinge on whether they can show that the agreement between the franchisor and its franchisees is really among separate entities rather than a single economic unit under the Copperweld
  • The Franchisor’s business justifications also are likely to be important as this litigation progresses.
  • Companies need to be sensitive to employment restrictions involving other employees such as non-solicitation or no-hire agreements.

Higher Mitigation of Fines Due to Prompt Implementation of Measures Addressing Authority’s Concerns in Unfair Commercial Practices Investigations

In a decision published on 10 February 2017, imposing Samsung Electronics Italia S.p.A. (“Samsung”) fines totaling € 3.1 million for alleged aggressive unfair commercial practices, the Italian Competition Authority (the “Authority”) confirmed that the prompt implementation of measures aimed at addressing its concerns regarding alleged unfair commercial practices leads to a higher mitigation of the fine.

According to the Authority, Samsung would have: (i) provided consumers with incomplete and misleading information on the terms and conditions of the promotions; and (ii) forced consumers to provide their consent to the processing of their personal data for marketing purposes, as a condition to obtain the premiums related to the purchase of the product. In setting the amount of the fine, the Authority took into account the measures implemented by Samsung before and after the beginning of the proceeding. Indeed, in relation to the second allegation, the Authority considered the importance of the measures implemented before the opening of the proceeding and granted a significant reduction of the fine (25%). In relation to the first conduct, the Authority granted a lower reduction of the fine (15%), given that the measures aimed at addressing its concerns were adopted only after the opening of the investigation.

On 4 May 2016, the Authority opened the investigation following several complaints received from consumers and consumers’ associations. In particular, Samsung would have used claims aimed at promoting prize-giving events without providing consumers with all relevant information and using a font style, which would have been too small or difficult to read. The Authority also considered that the access to promotions’ rules in each point of sales or through the website was not sufficient in order to overcome this lack of information. Furthermore, as mentioned above, according to the Authority, Samsung would have forced consumers to provide their consent to the processing of personal data for purposes other than the ones necessary for obtaining the premium. During the proceeding, Samsung voluntarily submitted and implemented measures aimed at improving consumers’ awareness on the terms and conditions of the promotions. These measures included simplification of consumers’ involvement in prize-giving events, verification of consumers’ satisfaction, improvement of systems aimed at monitoring whether employees would effectively provide all the relevant information to consumers, streamline procedures for obtaining the premium, a more efficient handling of consumers’ complaints. Furthermore, Samsung also submitted that it had implemented other measures aimed at addressing the concerns related to the provision of the customers’ consent for the processing of their personal data. The Authority fined Samsung of € 3.1 million for alleged unfair commercial practices consisting of aggressive and misleading promotions related to the purchase of smartphone, smart TV and other Samsung’s products. However, in the calculation of the fine, the Authority acknowledged the relevance of the above mentioned measures granting a significant reduction of the applicable fine.

Gabriele Giunta (Trainee) contributed to this blog post.

THE LATEST: DOJ Trial Machine is Staffed Up, Fired Up

WHAT HAPPENED:
  • The DOJ Antitrust Division scored another trial win — this time in a real estate foreclosure bid rigging case.
  • Yesterday’s win follows on the heels of Division wins in a Puerto Rico bus transportation bid rigging/fraud case (DC Office, Criminal I), enjoining of a significant merger (DC Office, Lit I), corruption prosecution of an environmental remediator (New York Office), and another real estate auction case (San Francisco Office).
WHAT THIS MEANS:
  • The Division is growing a crop of trial-ready and eager attorneys in multiple offices. They can be expected not to shy away from a courtroom challenge.

McDermott EU Competition Annual Review 2016

It is difficult for General Counsel and their teams to monitor all new developments adequately. With the growth of the Internet and the daily updates to EU competition rules, everyone receives and has access to masses of information, but it is difficult to select that which is really relevant to one’s business.

McDermott’s EU Competition team across Brussels, France, Germany and Italy has authored the EU Competition Annual Review 2016 to help General Counsel and their teams to focus on the essential updates that they should be aware of.

This Special Report summarizes recent developments in EU competition rules during the year 2016 where several new regulations, notices and guidelines were issued by the European Commission and many interesting cases were decided by the General Court and the EU Court of Justice.

All these new rules and judicial decisions can be relevant for international companies operating in the EU. Indeed, in addition to the daily update, this booklet provides an overview of the main recent developments in EU competition rules and can be kept as a ready reference when dealing with complex issues of EU competition law.

Read the full report.

Flurry of Antitrust Merger Enforcement Actions as Obama Presidency Comes to a Close

The Federal Trade Commission (FTC) and Antitrust Division of the Department of Justice (DOJ) announced several antitrust enforcement actions in advance of the inauguration of President Trump, including settlements for failures to file under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), a challenge to an unreportable deal and a settlement of a “gun-jumping” claim under the HSR Act. These cases illustrate the importance of compliance with the often complex reporting, waiting period and substantive aspects of antitrust laws in connection with acquisitions of various types, whether or not those acquisitions require premerger reporting. Failure to comply can result in significant financial penalties.

Two HSR “Failure to File” Settlements. On January 17, 2017, the FTC announced two settlements for failures to submit HSR filings and observe the statutory waiting period under the HSR Act prior to consummating acquisitions that met the relevant thresholds. The HSR Act requires notification of certain acquisitions of voting securities, assets and non-corporate interests if the value held as result of the transaction is in excess of certain notification thresholds and size of person thresholds (if applicable), and the transaction is not otherwise exempt. Parties to reportable transactions must observe the statutory waiting period prior to closing. If they fail to file, or otherwise do not observe the waiting period under the HSR Act, the parties may be liable for civil penalties of up to $40,654 per day (which was recently increased from $40,000, effective February 24, 2017).

In the first settlement, Ahmet Okumus agreed to pay $180,000 in connection with failing to notify for his purchases of voting securities of Web.com Group, Inc. (Web.com). According to the complaint, in September 2014, Okumus acquired voting securities of Web.com and as a result, held approximately 13.5 percent of the voting securities of Web.com. Okumus continued to acquire voting securities of Web.com through November 2014. Okumus did not file an HSR notification prior to making these acquisitions, relying on the “investment only” exemption, which exempts acquisitions resulting in holdings of 10 percent or less of the issued and outstanding voting securities if the shares are held solely for the purpose of investment (see 15 U.S.C. § 18a(c)(9) and 16 C.F.R. § 802.9). However, because Okumus held in excess of 10 percent, this exemption was not applicable. In late November of 2014, Okumus made a corrective filing that allowed him to acquire additional Web.com voting securities for approximately five years, provided that the value of the voting securities he held as a result of any acquisition did not exceed the $100 million (as adjusted) notification threshold. In a letter that accompanied his corrective filing, he indicated that the failure to file was inadvertent. The FTC did not seek civil penalties in that instance.

In June of 2016, Okumus began acquiring additional voting securities of Web.com. Later that month he acquired 236,589 voting securities of Web.com, and as a result of that acquisition, Okumus held voting securities valued (per the HSR rules) in excess of the $100 million (as adjusted) threshold, which at the time was $156.3 million. He made this acquisition without first filing and observing the HSR waiting period. In July of 2016, Okumus sold 33,200 shares, which resulted in him holding less than $156.3 million in Web.com voting securities, so technically, Okumus was only in violation of the HSR Act between June 27, 2016 (when he made the acquisition that put him over the $100 million (as adjusted) threshold) and July 14, 2016 (when his holdings in Web.com fell below the $100 million (as adjusted) threshold). In connection with this second corrective filing, Okumus agreed to pay a civil penalty of $180,000. In its press release, the FTC noted that it determined to seek penalties because “this is Okumus’s second HSR violation in two years regarding Web.com.” While technically the maximum civil penalty could have approached $700,000, the FTC noted that the penalty was adjusted downward from the maximum because the violation was inadvertent and promptly corrected, and Okumus was willing to resolve the matter quickly through a consent decree.

In the second settlement, Mitchell P. Rales agreed to pay $720,000 in connection with his wife’s acquisition of voting securities of Colfax Corporation (Colfax) and his acquisition of voting securities of Danaher Corporation (Danaher). Prior to his wife’s acquisition of Colfax shares, Rales held 57.9 percent of the voting securities of Colfax, and because he held over 50 percent of the voting securities of Colfax, any additional acquisitions would have been exempt under the HSR rules. However, after an initial public offering of Colfax voting securities, Rales’ holdings decreased to approximately 20.8 percent, and thus additional acquisitions were not exempt under the HSR rules. In October 2011, Rales’ wife acquired 25,000 voting securities of Colfax on the open market. Under the HSR rules, holdings of spouses and minor children are aggregated, so the shares acquired by Rales’ wife were attributed to him. As a result of this acquisition, Rales held voting securities of Colfax valued in excess of the then applicable $100 million (as adjusted) threshold. Rales did not file or observe the waiting period prior to his wife making this acquisition.

Separately, in January of 2008, Rales acquired 6,000 shares of Danaher on the open market, and as a result of this acquisition, held voting securities of Danaher valued at approximately $2.3 billion, which is well in excess of the $500 million (as adjusted) notification threshold at the time. Rales did not file or observe the waiting period under the HSR Act. Rales made corrective filings in February 2016 for both this acquisition and his wife’s acquisition of Colfax voting securities.

Prior to these corrective filings, Rales had paid a civil penalty of $850,000 in 1991, in connection with an acquisition for which Rales failed to file, that the FTC alleged was not inadvertent, but instead was structured in such a way as to avoid filing. In its press release, the FTC stated that it determined to seek penalties because “Rales had paid civil penalties to settle an earlier HSR enforcement action brought by the Department of Justice in 1991.”

These two settlements include some important reminders for acquiring parties, especially natural persons.

  • First, the “size of transaction” for HSR purposes is not simply the value of what is being acquired, but also includes the current value (as defined by the HSR rules) of what is already held of the acquired person.
  • Second, because acquirers need to consider the value of what they currently hold, valuation can creep up over time and a subsequent acquisition—no matter how small—may trip an HSR notification threshold. In other words, valuation must be considered with every acquisition from the same acquired person.
  • Third, natural persons must aggregate holdings of spouses and minor children when considering possible HSR filing requirements.

Disgorgement of Profits for Non-Reportable Transaction. On January 18, 2017, the FTC announced Mallinckrodt ARD Inc. (formerly known as Questcor Pharmaceuticals, Inc.) (Questcor) and its parent company agreed to pay $100 million to settle claims it monopolized a market for therapeutic adrenocorticotropic hormone (ACTH) drugs in the United States. The FTC alleged that Questcor held a monopoly in ACTH drugs when it acquired the rights to develop a competing drug, Synacthen Depot, from Novartis AG in June of 2013. The acquisition of these intellectual property rights was not subject to the reporting requirements of the HSR Act at the time. However, changes to the HSR rules applicable to pharmaceutical licenses in November 2013 likely would have resulted in a reportable transaction.

The FTC claimed that Questcor disrupted the bidding process for Synacthen and outbid other bidders so that it could keep Synacthen from becoming a competitor to Questcor’s product. Because of Questcor’s actions, the FTC alleged that a competitor was thwarted from challenging Questcor’s market position with a lower priced product. Meanwhile, Questcor has taken significant price increases on eight occasions since 2011. The FTC alleged these actions were in violation of Section 5 of the Federal Trade Commission Act as an unfair method of competition and Section 2 of the Sherman Act as monopolization. The Attorneys General of Alaska, Maryland, New York, Texas and Washington joined the FTC’s complaint.

Under the settlement, Questcor will pay $100 million in disgorgement and grant a license to develop Synacthen Depot to a licensee approved by the FTC. The states that joined the FTC’s complaint will receive $10 million of the $100 million payment and an additional $2 million as payment for attorney’s fees and costs. This settlement serves as an important reminder that non-reportable transactions remain subject to antitrust review and potential challenge at both the federal and state levels.

“Gun-Jumping” under the HSR Act. Also on January 18, 2017, the DOJ announced a settlement with Duke Energy Corporation (Duke) for violating the HSR Act by taking operational control of a target prior to observing the HSR waiting period. In August 2014, Duke agreed to purchase an electrical generating plant located in Florida. As part of the purchase agreement, Duke also entered into a “tolling agreement” where Duke would immediately—and prior to closing—began exercising control over the plant’s output and retaining the day-to-day profits and losses from its business. The DOJ’s complaint stated that Duke assumed control of purchasing all the fuel for the plant, arranging for delivery of that fuel and arranging for transmission of the energy generated by the plant. The DOJ claimed that Duke bore the benefit (or risk) of the profit (or loss) generated by the plant as well as the risk of changes in the market price for fuel and the market price for energy.

As stated in the 1978 Statement of Basis and Purpose issued with the final rules implementing the HSR Act, “the existence of beneficial ownership is to be determined in the context of particular cases with reference to the person or persons that enjoy the indicia of beneficial ownership, which include the right to obtain the benefit of any increase in value or dividends, the risk of loss of value, the right to vote the stock or to determine who may vote the stock, the investment discretion (including the power to dispose of the stock.” (43 Fed. Reg. 33450, 33458.) Application of these indicia of beneficial ownership depends on the totality of the circumstances; no one factor or set of factors is necessarily dispositive. In any event, in transactions that meet the HSR Act thresholds and are not otherwise exempt, the HSR Act prohibits an acquiring person from taking beneficial ownership of the target prior to the expiration or termination of the statutory waiting period. The DOJ alleged that Duke’s retention of the profit and loss of the electrical generating plant’s business as well as the benefit (or risk) of changes in market prices for fuel and energy were indicative of its beneficial ownership of Duke.

The parties did not submit their respective HSR notification and report forms for Duke’s acquisition of the plant until months after entering into the tolling agreement, which the DOJ alleges gave Duke beneficial ownership of the plant. Accordingly, the DOJ alleged that Duke was in violation from October 1, 2014, when the tolling agreement became effective, until February 27, 2015, when the HSR waiting period expired. To settle the DOJ’s complaint, Duke agreed to pay a civil penalty of $600,000 for violation of the HSR Act. In a statement, Duke noted that it “admits no wrongdoing or liability as part of the settlement,” but agreed to the civil penalty “to settle the case and avoid the costs and uncertainties of continued litigation.”

Summary. These various settlements illustrate several important reminders for acquiring or merging parties. First, the notification requirements of HSR Act can apply in unexpected circumstances. Acquiring parties—whether individual investors, executives that receive stock as compensation, spouses or companies—should give careful consideration as to whether the HSR Act may apply to even the most seemingly mundane or ordinary acquisitions. Second, even if a transaction is not subject to the reporting requirements of the HSR Act, it may still be investigated and ultimately challenged—possibly resulting in an effective unwinding of the transaction and disgorgement of profits. Careful analysis and advance planning can help parties anticipate and manage the potential risk of a post-closing challenge. Third, obligations under the antitrust laws do not end with the execution of a transaction agreement. Parties must continue to observe obligations under the antitrust laws prior to closing even after they have executed a transaction agreement. This applies to the pre-closing activity of merging competitors, as well as complying with the HSR Act by not taking beneficial ownership prior to the expiration or termination of the HSR waiting period (regardless of the competitive overlap between the parties). These enforcement actions illustrate the potential (and possibly unanticipated) applicability of antitrust laws to a variety of acquisitions and at different stages of a transaction’s life cycle.

DOJ Policy Updates Signal Continuity of Antitrust Program

This month, the US Department of Justice Antitrust Division revised its “Frequently Asked Questions About the Antitrust Division’s Leniency Program and Model Leniency Letters” (FAQs), with releases both before and after the new administration took office. The revisions serve as a signal that the continuity we have seen in previous years from the Antitrust Division is likely to continue. The changes include long-needed clarifications and updates since the release of the FAQs in 2008.

Read the full article.

Antitrust M&A Snapshot: October – December 2016 Update

McDermott’s Antitrust M&A Snapshot is a resource for in-house counsel and others who deal with antitrust M&A issues but are not faced with these issues on a daily basis. In each quarterly issue, we will provide concise summaries of Federal Trade Commission (FTC), Department of Justice (DOJ) and European Commission (EC) news and events related to M&A, including significant ongoing investigations, trials and consent orders, as well as analysis on the trends we see developing in the antitrust review process.

Read the full report here.

 

Musical Chairs at the FTC—Ohlhausen is New Acting Chairwoman

This month has seen significant changes in the landscape of federal leadership and the changes have now reached the Federal Trade Commission (FTC). On January 13, current Chair Edith Ramirez announced that she would resign from her position effective February 10, 2017. This Wednesday, January 25, the new administration designated Maureen Ohlhausen as Acting Chair. Ohlhausen, a Republican, was one of two remaining commissioners at the agency, along with Democrat Terrell McSweeny.

Ramirez served as a commissioner since 2010 and chair since early 2013 by designation of fellow Harvard Law Review member, President Obama. She spent her early career as a litigator with Quinn Emanuel and focused on antitrust, unfair competition and Lanham Act work. From the beginning of her tenure as chair, Ramirez developed a reputation as a hard-working and effective leader who was experienced, even-handed and not afraid to bring mergers to court. As a Latina and the daughter of Mexican immigrants, Ramirez was the first member of an ethnic minority to oversee the agency. During her tenure, she also secured a number of high-profile wins for the commission.

Ohlhausen has been a commissioner since 2012, though she started at the FTC’s General Counsel’s Office back in 1997. She has also worked as an advisor to former FTC Commissioner Orson Swindle and has been Deputy Director and then Director of the Office of Policy Planning. Ohlhausen stated at a Heritage Foundation antitrust conference this month that “all signs point to a new antitrust policy.” She discussed narrowing the scope of “Second Requests” in merger reviews by making them more targeted and therefore less burdensome. She also expressed a priority of greater protection for intellectual property rights, complaining that the agency has been too quick to accuse standard essential patent (SEP) holders of anticompetitive behavior when suing to defend their rights.

Meanwhile, the new administration’s position on merger activity hasn’t been clear. While in October 2016, Donald Trump described the AT&T-Time Warner deal as “a deal we will not approve in my administration because it’s too much concentration of power in the hands of too few,” and said that Comcast’s acquisition of NBC Universal “concentrates far too much power in one massive entity that is trying to tell the voters what to think and what to do,” he has subsequently chosen advisers on telecom and antitrust issues who appear to apply traditional antitrust analysis that is more merger-friendly than the prior administration.

Republican and Former Commissioner Joshua Wright leads the new administration’s transition of the FTC. The incoming administration will need to find three new commissioners for the five-member panel. At least one of the three must be a Democrat. The new appointments will be very important to follow for clients considering mergers in the near future.

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