Archives: Mergers & Acquisitions

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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

FTC Comments Discourage Legislation Purporting to Grant Antitrust Immunity for Health Care Providers

In late September, the Federal Trade Commission (FTC) submitted comments to the Virginia and Tennessee Departments of Health regarding each state’s proposed rules concerning hospital cooperation agreements. These proposed rules permit two or more hospitals to consolidate by merger or other combination of assets if, in the departments of health’s view, the benefits of the … Continue Reading

FTC Settles Allegations of HSR Act Violation by Activist Investment Fund

The Federal Trade Commission (FTC) announced a settlement on August 24, 2015, with Third Point Funds for failing to file a notification under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) in connection with the acquisition of shares in Yahoo! Inc. (Yahoo) in 2011. Third Point Funds initially did not file and observe the HSR waiting … Continue Reading

Has Antitrust Enforcement Been ‘Reinvigorated’ Under Obama?

In the 2008 presidential election campaign, then-candidate Barack Obama promised to “reinvigorate” antitrust enforcement. Over the last few years, several observers have concluded that the Obama administration’s antitrust record is not substantially different from that of his predecessor. Conventional wisdom suggests that antitrust enforcement is non-partisan. Some key statistics bear out this conclusion, but a … Continue Reading

Four FTC Commissioners Reject Wright’s Call for GUPPI Safe Harbor

Four members of the Federal Trade Commission (FTC) issued a statement on July 13, 2015, disputing claims by a fellow commissioner that the 2010 Horizontal Merger Guidelines include a “safe harbor” that is available in unilateral effects merger investigations. Commissioner Joshua Wright’s comments about the potential safe harbor arose in the context of the Commission’s … Continue Reading

ICN Adopts New Guidance Focusing on Investigative Process and International Cooperation in Mergers

From April 28 through May 1, the International Competition Network (ICN) held its 2015 annual conference. The ICN is a network that unites 132 competition watchdogs from 119 jurisdictions, including the Antitrust Division of the U.S. Department of Justice (DOJ), the Federal Trade Commission (FTC), the European Commission (EC) and the Japan Fair Trade Commission … Continue Reading

Top Antitrust Enforcers Respond to Congressional Questioning

Federal Trade Commission (FTC) Chairwoman Edith Ramirez and Assistant Attorney General William Baer testified before the House Committee on the Judiciary’s Subcommittee on Regulatory Reform, Commercial and Antitrust Law on May 15, 2015. The oversight hearing provided an opportunity for the heads of the U.S. antitrust enforcement agencies to survey their agencies’ priorities and recent … Continue Reading

ABA Antitrust Spring Meeting Highlight: “Antitrust & Health Care: Square Peg in a Round Hole?”

In this month’s American Bar Association (ABA) Section of Antitrust Law Spring Meeting, the program “Antitrust & Health Care: Square Peg in a Round Hole?” featured debate and discussion about antitrust law treatment of health care transactions and how that treatment might (or should) evolve (via regulation, legislation, or some combination of approaches), or conversely, … Continue Reading

FTC Clarifies “Failing Firm” Defense

Earlier this week, the Federal Trade Commission (FTC) published an article that offers guidance on the “failing firm” or “flailing firm” defense often invoked in the hospital merger context.  The article, written by Debbie Feinstein and Alexis Gilman of the Bureau of Competition, clarifies the circumstances under which this defense is and is not available. … Continue Reading

FTC Consent Agreement with Par Petroleum Demonstrates Increased Agency Focus on Competitive Effects

On March 18, 2015, the Federal Trade Commission (FTC) ordered Par Petroleum Corporation to terminate its storage and throughput rights at a key gasoline terminal in Hawaii. This action will settle FTC charges seeking to prevent Par’s acquisition of Koko’oha Investments, Inc. Notably, the market structure created as a result of this remedy mirrors a … Continue Reading

FTC Rule Change Simplifies Process Following a Denial of a Preliminary Injunction Motion

On March 14, 2015, the Federal Trade Commission (FTC) announced procedural revisions governing the FTC process when it loses an injunction bid in federal court, to block the consummation of a merger pending its in-house administrative proceedings on the legality of the merger. When the FTC seeks to challenge a merger, the FTC generally seeks … Continue Reading

Italian Merger Control Thresholds – New Revisions

The Italian Competition Authority has updated its merger control turnover thresholds. Effective today, 16 March 2015, 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 EUR 492 million (revised under … Continue Reading

FTC and DOJ Host Workshop Examining Health Care Competition

The Federal Trade Commission (FTC) and the Antitrust Division of the U.S. Department of Justice (DOJ) held a public workshop on February 24–25, 2015, to examine recent trends and developments in health care provider organization and payment models, and their potential effects on competition in the provision of health care services. A main message from … Continue Reading
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