In M&A transactions, early involvement of antitrust counsel is essential to avoid unnecessary expense, delay and antitrust risks. Failure to involve antitrust counsel early on in the process may not only jeopardize the parties’ ability to obtain antitrust clearance, but it can also give rise to potential exposure for independent antitrust violations and deal risk. This article discusses five avoidable antitrust pitfalls to keep in mind early in any transaction planning process.
The Federal District Court in Minnesota recently decided Ovation Pharmaceutical did not violate federal or state antitrust laws when it acquired Indocin IV and NeoProfen, the only two drugs approved for treatment of a specific heart condition that primarily affects premature babies, because the challengers failed to establish that the drugs were in the same product market. The decision raises significant issues to consider when evaluating antitrust risks in future transactions.
McDermott Will & Emery’s International News, Issue 2, 2010, covers a range of legal developments of interest to those operating internationally. This issue focuses on Antitrust and Competition.
The Italian Competition Authority has updated its merger control turnover thresholds. Effective as of 31 May 2010, Section 16(1) of Law no. 287 of 10 October 1990 requires prior notification of all mergers and acquisitions where either of the following conditions is fulfilled:
Aggregate turnover in Italy of all undertakings involved is above EUR 472 million (revised under the terms of the same Section 16(1))
Aggregate turnover in Italy of the target company is above EUR 47 million (as revised)
No notification is required if the target is a foreign company which did not generate any turnover in Italy in the last three years and is not expected to do so as a result of the transaction.
Italy’s merger control thresholds are adjusted annually to take into account increases in the GDP deflator index. The updated thresholds are published in the Competition Authority’s Bulletin once this increase in index is announced officially.
The Italian Competition Authority announced today that the amount of its merger control filing fee will remain unchanged in 2010. The amount of the fee will therefore continue to be 1.2 per cent of the value of the notified transaction, in a range of EUR 3,000 to 60,000. For the purpose of the calculation of the filing fee, the value of the transaction is the agreed consideration. In the case of acquisitions of companies or parts of companies generating turnover outside of Italy, the value of the transaction is adjusted applying the correction factor given by the ratio between the domestic and worldwide turnover realized by the company which is to be acquired.
The Italian Competition Authority today updated its merger control turnover thresholds.
As of 27 July 2009, Section 16(1) of Law no. 287 of 10 October 1990, requires prior notification of all mergers and acquisitions involving the following:
aggregate turnover in Italy of all undertakings involved above EUR 461 million (revised under the terms of the same Section 16(1)); or
aggregate turnover in Italy of the target company above EUR 46 million (as revised)
No notification is required if the target is a foreign company, which did not generate any turnover in Italy in the last 3 years, and it is not expected to do so as a result of the transaction.
Thresholds are adjusted each year to take account of increases in the GDP deflator index. The resolution is published in the Authority’s Bulletin after the increase in the index has been officially announced (as to the thresholds in force, see the Authority’s resolution No.20074, published in Italian language in the Bulletin No. 27 of 27 July 2009).
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