Archives: Mergers & Acquisitions

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THE LATEST: Further Efforts to Broaden the Scope and Impact for CFIUS Reviews of Foreign Acquisitions of US Businesses

We reported earlier on the Committee on Foreign Investment in the United States (CFIUS) and its legal and practical authority to review M&A transactions for possible risks to US national security posed by foreign ownership of a US business. Sens. Cornyn (R-TX) and Schumer (D-NY) reportedly are working separately on legislation to strengthen CFIUS, which … Continue Reading

THE LATEST: Losing Bidder for Pharmaceutical Triggers FTC Investigation, Fix, and $100 Million Fine in Non-HSR-Reportable Transaction

A private lawsuit filed by Retrophin Inc. (Retrophin), under then-CEO Martin Shkreli, likely triggered an investigation by the FTC into a consummated transaction.  Both the private lawsuit and the FTC complaint resulted in settlement.  In addition, the FTC levied a $100 million penalty. WHAT HAPPENED: In 2013, Questcor Pharmaceuticals, Inc. (Questcor) acquired the U.S. rights … Continue Reading

Rolls-Royce Proposed Acquisition of Spanish Rival Industria de Turbo Propulsores. The European Commission Invites Interested Third Parties to Submit Comments

On 4 March 2017, the European Commission (Commission) published a notice concerning the notification of the proposed acquisition of the Spanish aircraft company Industria de Turbo Propulsores SA (Spain, ITP), by Rolls-Royce Holdings plc. (UK, Rolls-Royce). Interested third parties, such as competitors, suppliers or customers can provide the Commission with their observations on the likely … Continue Reading

THE LATEST: FTC Fixes Consummated Pharma Transaction Involving Pre-Phase 3 Product Because It Eliminated a “Nascent Threat”—Tacks on $100 Million Disgorgement Penalty

The Federal Trade Commission (FTC) challenged a consummated transaction using a monopolization theory to allege that the acquisition would eliminate “nascent” competition for therapeutic adrenocorticotropic hormones (ACTH) in the United States. WHAT HAPPENED: Questcor Pharmaceuticals, Inc.’s (Questcor) H.P. Acthar Gel (Acthar) is the only ACTH product sold in the US, is the standard of care … Continue Reading

THE LATEST: FTC Determines Behavioral Remedies are Sufficient to Fix Offshore Natural Gas Pipeline Overlap

The Federal Trade Commission (FTC) recently granted US antitrust clearance for Enbridge’s acquisition of Spectra after the parties agreed to behavioral commitments to remedy an overlap for natural gas pipeline transportation from the wellhead in three markets off the coast of Louisiana (Green Canyon, Walker Ridge and Keathley Canyon). WHAT HAPPENED: The merging parties each … Continue Reading

THE LATEST: National Security Reviews of Foreign Ownership May Broaden

The Committee on Foreign Investment in the United States (CFIUS, commonly pronounced “syphius”) reviews M&A transactions that may pose a risk to national security through foreign control of a US business.  (See our recent article).  CFIUS is composed of members from the Departments of Treasury (chair), Homeland Security, State, Defense and other agencies.  It has … Continue Reading

THE LATEST: Learnings from Merger Remedies Study Underscores FTC’s Heightened Focus on Remedy Packages and Proposed Buyers

WHAT HAPPENED: In early February, the FTC released its Merger Remedies Study (the Study), which focused on transactions from 2006-2012 in which the FTC found a competitive problem that did not require a block outright, and allowed the transaction to gain clearance so long as the merging parties agreed to what the FTC determined were appropriate … Continue Reading

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 … Continue Reading

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 … Continue Reading

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” … Continue Reading

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 … Continue Reading

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. … Continue Reading

Notification Threshold Under the Hart-Scott-Rodino Act Increased to $80.8 Million

Pursuant to the amendments passed by the US Congress in 2000, the FTC announced revised thresholds for HSR pre-merger notifications on January 19, 2017. These increased thresholds will become effective 30 days following publication in the Federal Register. These new thresholds apply to any transaction completed and any HSR pre-merger notifications filed on or after … Continue Reading

Changes to Polish Antimonopoly Law in a Nutshell

The Polish Office of Competition and Consumer Protection (Urząd Ochrony Konkurencji i Konsumentów, “UOKiK”) has recently published its 2015 annual report presenting its first experiences with the recent amendments to Polish merger control regulations. However, only future developments will show the effects of the new much more severe rules on cartel infringement proceedings and sanctions … Continue Reading

Aerospace and Defense Series: Trump Administration—Potential for Increased Antitrust Leniency for Vertical Transactions in the Defense Industry

President-elect Donald Trump has called for a dramatic increase in defense spending including purchases of new ships and warplanes as well as the addition of tens of thousands of new troops. This increase in spending generally bodes well for the aerospace and defense industry and potentially signals a new era of growth for companies in … Continue Reading

Seventh Circuit Hands FTC Another Geographic Market Definition Victory in Chicago Hospital Merger Case

On October 31, 2016, the US Court of Appeals for the Seventh Circuit handed another important victory to the Federal Trade Commission (FTC) and the State of Illinois in a hospital merger case in Chicago, Illinois. This decision follows closely on the heels of the FTC’s victory earlier this year in FTC v. Penn State … Continue Reading

UK CMA Imposes Behavioural Commitments akin to a Structural Divestment: The Sci-fi Magazines Case

Divestments often constitute the most appropriate remedy to resolve antitrust concerns in the context of merger control. However, behavioural commitments may also have the same commercial effects as a divestment. This was illustrated in a merger control case handled by the United Kingdom Competition Market Authority (the ‘CMA’) in the specialist magazines sector. Another feature … Continue Reading

Change in LBO Valuation for HSR Purposes

The Federal Trade Commission (FTC) recently reversed its position on how to calculate the size-of-transaction for HSR purposes in connection with leveraged buyouts (LBOs). This change in position may result in more reportable transactions. As detailed here, the FTC’s position, effective immediately, is that any new debt used to finance an LBO transaction, counts toward the … Continue Reading

FTC’s Largest Pharmaceutical Divestiture Gives Insight into Broader Theories of Harm

In pharmaceutical transactions involving generic products, the Federal Trade Commission (FTC) has typically focused on narrow antitrust theories of harm and applied a narrow product market analysis often limited to a treatment for a particular indication (and sometimes to a specific mechanism of action). In these transactions, the FTC has consistently required fixes for generic … Continue Reading

Election 2016: Trump on Antitrust

While antitrust policy and enforcement has not received much attention from Donald Trump on the campaign trail, Mr. Trump has made a few notable statements regarding antitrust law that provide hints as to potential antitrust enforcement priorities for a Trump administration. Mr. Trump’s history as both a plaintiff and defendant in antitrust litigation is also … Continue Reading

Antitrust Enforcement under a Clinton Administration: Status Quo or Significant Change?

On Monday, October 3, 2016, Hillary Clinton issued a statement on her website titled “Hillary Clinton’s Vision for an Economy Where our Businesses, our Workers, and Our Consumers Grow and Prosper Together.” Prior to this statement, there had been some speculation over what a Clinton presidency might bring in terms of antitrust enforcement. Unlike President … Continue Reading
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