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FTC and DOJ Accepting HSR Filings During Shutdown

by Gregory Heltzer The Federal Trade Commission (FTC) and Department of Justice (DOJ) both announced that they will have limited staff on hand to accept Hart-Scott-Rodino (HSR) premerger notification filings during the U.S. federal government shutdown.  The HSR Act requires that parties subject to the Act must wait 30 days before closing their transaction.  This waiting period provides the agencies with time to determine whether to challenge a transaction prior to closing.  During the shutdown, the FTC will continue HSR investigations to the extent that “a failure by the government to challenge the transaction before it is consummated will result in a substantial impairment of the government’s ability to secure effective relief at a later time.”  (See, FTC Shutdown Plan.)  Likewise, the DOJ will also prepare cases that must be filed due to expiration of the HSR waiting period.  (See, DOJ Shutdown Plan.)  We will provide updates if and when we learn more...

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Proposed Changes to HSR Rules for Pharmaceutical Companies

by Jon B. Dubrow and Carla A. R. Hine Today the Federal Trade Commission (FTC) announced proposed changes to the Hart-Scott-Rodino (HSR) premerger notification rules that will impact the types of transactions for which pharmaceutical companies will be required to file HSR notifications with the Department of Justice and FTC.  The proposed rulemaking is meant to clarify when a transfer of exclusive rights to a patent in the pharmaceutical industry results in a potentially reportable acquisition of assets under the HSR Act. Previously -- although never actually codified -- the FTC would determine whether the transfer of rights to a patent (usually in the form of a license) was a reportable event under the HSR Act by focusing on whether the licensor transferred the exclusive rights to "make, use and sell" under a patent.  The emphasis on the transfer of the exclusive right to manufacture would result in scenarios where parties would not be...

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Increased Antitrust Scrutiny of Non-Reportable or Closed Transactions

by Jon B. Dubrow and Carla A. R. Hine In recent years, the Federal Trade Commission (FTC) and the Department of Justice (DOJ)—the two US agencies responsible for reviewing and challenging transactions that may lessen competition—have increasingly challenged non-reportable and consummated transactions.  There have been several such challenges so far in 2011, and at least nine in 2010 (all but one of which resulted in a settlement). To read the full article, click here.

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The Top Five (Avoidable) Antitrust Traps in M&A Transactions

by Jon B. Dubrow, Joseph F. Winterscheid and Carla A. R. Hine 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. To read the full article, click here. 

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Notification Threshold Under Hart-Scott-Rodino Act Increased to $66 million

by Jon B. Dubrow, Joseph F. Winterscheid and Carla A. R. Hine The Federal Trade Commission (FTC) recently announced revised thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) and 2011 thresholds for determining whether parties trigger the prohibition against interlocking directors under Section 8 of the Clayton Act.  Increased reporting thresholds apply to pre-merger notifications filed on or after February 24, 2011. To read the full article, please visit: http://www.mwe.com/info/news/ots0111g.htm.

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