Archives: Mergers & Acquisitions

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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

Third Circuit Blocks Hospital Merger in Key Victory for FTC on Geographic Market Definition

On September 27, 2016, the US Court of Appeals for the Third Circuit handed an important victory to the Federal Trade Commission and the Commonwealth of Pennsylvania in a closely watched hospital merger case. The decision provides clear guidance on the appropriate tests for determining geographic markets in hospital merger cases, while also suggesting that … Continue Reading

Listed Companies: Dealing with Reporting Obligations in the Context of Antitrust Proceedings

Financial regulatory authorities such as the US Security and Exchange Commission (SEC) and the French Autorité des marchés financiers frequently impose on companies that are listed on a stock exchange the obligation to disclose key information to investors to help them make informed investment decisions. The difficulties for companies lie principally in the nature of … Continue Reading

US and EU Requirements for Pre-Merger Notification of an Acquisition of a Minority Shareholding Interest

In May, the Federal Trade Commission (FTC) required Hikma Pharmaceuticals PLC to divest its 23 percent interest in Unimark Remedies, Ltd. and its US marketing rights to a generic drug under manufacture by Unimark as a condition to allowing Hikma to complete its acquisition of Roxane Laboratories. The FTC was concerned that Hikma’s continued holding … Continue Reading

Price Discrimination Markets Lead Antitrust Enforcers to Increased Success

In the last two years, the Federal Trade Commission (FTC) and the Antitrust Division of the US Department of Justice (DOJ) brought, and won, several litigated merger cases by establishing narrow markets comprised of a subset of customers for a product. This narrow market theory, known as price discrimination market definition, allowed the agencies to … Continue Reading

Recent Enforcement Trends in Divestiture Packages

The Federal Trade Commission (FTC) and US Department of Justice’s (DOJ) Antitrust Division have been actively challenging mergers and acquisitions (M&A) across a variety of industries where there is not a viable or acceptable remedy to mitigate the agencies’ competitive concerns. Parties to M&A transactions that the FTC or the DOJ believe are likely to … Continue Reading

DOJ Continues to Monitor Interlocking Corporate Directorates with Restructuring of Tullett Prebon’s Acquisition of ICAP

On July 14, 2016, the US Department of Justice (DOJ) announced that the restructuring of a planned $1.5 billion transaction between Tullett Prebon Group Ltd. (Tullett Prebon) and ICAP plc adequately addresses the DOJ’s concerns that the transaction would violate Section 8 of the Clayton Act by creating an interlocking directorate.  The parties restructured their … Continue Reading

McDermott’s Antitrust M&A Snapshot Published on July 17, 2016

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, … Continue Reading

Lessons Learned – The State of Affairs in US Merger Review

In the last year, the US antitrust regulators successfully challenged multiple transactions in court and forced companies to abandon several other transactions as a result of threatened enforcement actions. Looking back at the different cases, there are some trends that we see developing in the government’s positioning on mergers, and these should be kept in … Continue Reading

District Court Blocks FTC and PA AG Challenge to Hershey-Pinnacle Merger

On May 9, 2016, the US District Court for the Middle District of Pennsylvania denied the motion by the Federal Trade Commission and Pennsylvania Office of Attorney General for a preliminary injunction to enjoin the merger of Penn State Hershey Medical Center and PinnacleHealth System. The decision ends a string of victories by the FTC … Continue Reading

FTC Emphasizes Competitive Issues Arising From Partial Interest Acquisitions

On May 9, the Federal Trade Commission (FTC) posted an article summarizing recent developments and areas of competitive sensitivity in the acquisition of partial equity interests.  Most antitrust challenges to mergers or acquisitions involve situations in which an acquiror takes control of the target company.  However, substantive antitrust issues also can arise from acquisitions of … Continue Reading

EU: Merger case cleared following offer of FRAND technology license

On 20 April 2016, the European Commission (Commission) cleared, under its merger control rules, the acquisition of Equens and PaySquare by Worldline subject to, amongst others, a commitment to license technology to any customer interested, at Fair, Reasonable and Non-Discriminatory (FRAND) conditions. Worldline is a French provider of payment services and terminals, financial processing and … Continue Reading

House Passes GOP-Backed SMARTER ACT Aiming to Harmonize Merger Review Process for FTC and DOJ

On March 23, 2016, the U.S. House of Representatives passed the Standard Merger and Acquisition Reviews Through Equal Rules (SMARTER) Act by a vote of 235-171, despite strenuous objections from the Federal Trade Commission (FTC).  The FTC and the Department of Justice (DOJ) review proposed mergers and acquisitions.  Currently, the FTC can challenge transactions under … Continue Reading

Dutch Competition Authority Fines Cold-Storage Companies for Exchange of Information in the Context of Merger Talks

On 23 March 2016, the Netherlands Authority for Consumers and Markets (ACM) announced that it had fined four cold-storage firms for having put in place anticompetitive arrangements while in extended merger talks with one another.  (case number: 13.0698.31|15.0710.31|15.0327.31|15.0328.31). In addition, ACM fined five individuals for their personal involvement in these anticompetitive arrangements. The case at … Continue Reading

Update: Peculiarities of the Merger Filing Requirements in Germany and Austria

As many dealmakers doing business in Europe have realized, German and Austrian merger filing requirements are sometimes a bit tricky, and in some respects different from the rules in place at EU level and in other EU member states. For instance, it may be that a transaction has to be notified in one of these … Continue Reading

Italian Competition Authority Updates Merger Control Turnover Thresholds

The Italian Competition Authority has updated its merger control turnover thresholds. Effective 14 March 2016, Section 16(1) of Law no. 287 of 10 October 1990 requires prior notification of all mergers and acquisitions where both the following conditions are fulfilled: Aggregate turnover in Italy of all undertakings involved is above € 495 million (revised under the terms of … Continue Reading

FTC’s Feinstein Declines to Provide Safe Harbor Guidance for Low GUPPIs

At a recent panel discussion during George Mason Law Review’s annual antitrust symposium, Deborah Feinstein, director of the Federal Trade Commission’s (FTC) Bureau of Competition, was asked what levels of gross upwards pricing pressure index (GUPPI) could raise concern in the FTC’s merger review process.  Feinstein declined to provide a specific level that would raise … Continue Reading

Recent Judgments Illustrate How the European Commission Can Correct Its Errors Post-Annulment

As a general proposition, when the validity of a European Commission antitrust decision is challenged before the General Court of the European Union (GCEU), the procedure is one of judicial review, not a retrial on the merits (although the GCEU does have special jurisdiction to increase or reduce the amount of any fine). Thus there … Continue Reading

The EU Court of Justice Brings to an End Odile Jacob’s Fight Against Lagardère’s Purchase of Vivendi Universal Publishing

By its judgment of 28 January 2016 (C-514/14 P, Editions Odile Jacob SAS v Commission), the European Court of Justice (Court) upheld the General Court of the European Union’s (GCEU) ruling with respect to each of the grounds raised by Editions Odile Jacob (Odile Jacob) thereby dismissing Odile Jacob’s appeal. The case concerned the sale, … Continue Reading

Notification Threshold Under the Hart-Scott-Rodino Act Increased to $78.2 Million

The Federal Trade Commission (FTC) recently announced increased thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR) and 2016 thresholds for determining whether parties trigger the prohibition against interlocking directors under Section 8 of the Clayton Act. Read the full article.… Continue Reading