On August 3, the Federal Trade Commission said it will continue to investigate the relationship between the boards of Apple, Inc. and Google, Inc. even after Google's CEO, Eric Schmidt, resigned from Apple's board earlier in the day.
On July 29, Thoratec reported that it had been informed by the FTC that the FTC would challenge its $282 million acquisition of Heartware. The parties decided to abandon the merger two days later.
Continue reading "FTC READY TO CHALLENGE THORATEC’S PROPOSED ACQUISITION OF HEARTWARE" »
On July 24, 2009, the Federal Trade Commission issued an administrative complaint challenging Carilion Clinic’s August 2008 acquisition of two outpatient clinics in the Roanoke, Virginia, area. Prior to the acquisition, the Center for Advanced Imaging ("CAI") and the Center for Surgical Excellence ("CSE") had strong reputations for offering high-quality care and convenient services at prices much lower than Carilion’s.
Continue reading "FTC CHALLENGES CONSUMMATED ACQUISITIONS" »
On July 6, a number of news sources reported that the DOJ has begun looking into whether large U.S. telecommunications companies such as AT&T Inc. and Verizon Communications Inc. are abusing their market power they have amassed in recent years.
Continue reading "DOJ REPORTEDLY REVIEWING TELECOMMUNICATIONS INDUSTRY" »
On May 3,2004, the Department of Justice's ("DOJ") Antitrust Division, at the request of the Federal Trade Commission ("FTC"), filed two civil suits against alleged violators of pre-merger notification filing requirements under the Hart-Scott-Rodino ("HSR") Act of 1976. The HSR Act imposes notification and waiting period requirements on individuals and companies over a certain size before they can consummate acquisitions of stock or assets valued at more than $50 million. The purpose of the HSR Act is to provide federal antitrust enforcement agencies an opportunity to investigate proposed transactions and determine whether the transactions would violate the antitrust laws. If the reviewing agency determines that a transaction violates the antitrust laws, it may seek to block that transaction before the waiting period expires. Therefore, the antitrust agencies take HSR violations very seriously, even ones where no competition overlaps exist. Indeed, a party is subject to a maximum civil penalty of $11,000 a day for each day it is in violation of the HSR Act.
Continue reading "HSR RULES MUST BE TAKEN SERIOUSLY" »
On May 11, 2009, Christine A. Varney, Assistant Attorney General in charge of the Department's Antitrust Division, delivered her first speech at an event sponsored by the Center for American Progress. The speech, entitled "Vigorous Antitrust Enforcement in this Challenging Era," confirms that the new administration intends be much more active role than the Bush administration in terms of antitrust enforcement. Her speech primarily focused on the Department's approach to enforcing Section 2 of the Sherman Act, which prohibits monopolization or attempts to monopolize.
Continue reading "ANTITRUST DIVISION WILL TAKE A MORE AGGRESSIVE APPROACH TO EXCLUSIONARY CONDUCT" »
On May 5, it was reported by various news sources that the Federal Trade Commission opened an investigation into whether an overlap of directors on the boards of Apple Inc. and Google Inc. violates the antitrust laws,
Continue reading "FTC INVESTIGATING GOOGLE, APPLE" »
On June 2, 2008 Chancellor William B. Chandler III of Delaware decided to unseal the complaint in a case brought by two pension fund shareholder groups against Yahoo and its Board of Directors. The plaintiffs accused the Yahoo Board of Directors, especially CEO Jerry Yang, of violating their fiduciary duties and enacting barriers such as a severance package for employees to thwart an acquisition by Microsoft.
Continue reading "DELAWARE JUDGE UNSEALS COMPLAINT AGAINST YAHOO’S BOARD OF DIRECTORS" »
In a recent judgment dated September 30, 2007, the Federal Supreme Court held that even after parties abandon their merger plans due to a prohibition decision by the German Federal Cartel Office ("BKartA"), German courts hold jurisdiction to rule on the question as to whether the BKartA was right to prohibit the proposed merger. The parties do, however, need to demonstrate a special interest in such a court review. The Federal Supreme Court acknowledged that such an interest arises in particular if the purchaser is likely to be confronted with similar arguments by the BKartA that led to the relevant prohibition when notifying potential future acquisitions.
In a ruling released on September 17, 2007, the Court of First Instance (the “Court”), the second highest court in Europe, reaffirmed the European Commission’s (“EC”) 2004 decision that Microsoft abused its market power by tying its digital media player to the Windows operating system. By bundling these products together, Microsoft undercut existing competition in the digital media player market and created an anticompetitive market structure. The Court upheld nearly all the key points the 2004 EC decision and, in doing so, delivered a stinging rebuke to Microsoft. The Court’s ruling stated that the EC’s standard of interoperability between the Windows operating system and alternative digital media players was well conceived and that there is no inconsistency between that degree of interoperability and the remedy imposed by the EC.
The Court also upheld the EC directive to share confidential computer code with Microsoft’s competitors, a ruling that contains possible ramifications on other companies that possess market dominance in various software markets. The Court went on to declare that the EUR 497 million ($690 million) fine levied against Microsoft shall stand as is.
On July, 25 President Bush signed a bill that will reinforce the review process of foreign acquisitions in the United States, and secure an open environment for foreign investment that is critical to the U.S. economy. The final law does not alter the review period of the first and second stages of the process, and the Committee on Foreign Investment in the United States ("CFIUS") is now allowed to impose fines or, in the most severe cases, reopen reviews for material noncompliance with a mitigation agreement. Under the new law, CFIUS is required to provide Congress with detailed reports after the completion of investigations and reviews, and to consider an expanded list of factors in its national security review. These factors include the risk of technology transfer to a country that is a threat to the United States and the risks associated with foreign investment in critical infrastructure. These are just some of the most significant changes made to the process.
Continue reading "CFIUS Reform" »
On June 26, 2007 the Japanese Government’s Advisory Panel on Basic Issues Regarding the Anti-Monopoly Act (“the Panel”) concluded its series of roundtable discussions. Since 2005, the Panel has met in order to discuss and update the Act Concerning Prohibition of Private Monopolization and Maintenance of Fair Trade. The Panel was directed by the Chief Cabinet Secretary and heard testimony from a wide range of experts and concerned citizens. The statement issued by the Panel, and summarized below, is the culmination of these meetings.
Continue reading "JAPANESE ADVISORY PANEL ISSUES RECOMENDATIONS" »
Andre P. Barlow's most recent published article is now available on the Legal Times website. To read it, please visit: http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1161075916475&hub=Commentary
Testifying on behalf of the Federal Trade Commission (“FTC”) before the U.S. Senate’s Special Committee on Aging, Commissioner Jon Leibowitz described the FTC’s work in the area of branded and generic pharmaceutical competition and discussed barriers that can lead to the delay of generic entry into the U.S. marketplace.
Continue reading "FTC Testifies on Barriers to the Entry of Generic Drugs" »
On July 18, the FTC announced that it reached a settlement that would allow Linde AG’s acquisition of the BOC Group to proceed. As is typical in merger reviews, the FTC staff focused on specific product overlaps to determine what assets needed to be divested to resolve the antitrust concerns. The Commission approved the merger so long as the companies divest two groups of assets: (1) liquid oxygen and liquid nitrogen and (2) bulk refined helium. The divestitures are required to satisfy the FTC that competition will not be harmed following the transaction. That being said, an up front buyer was required for one set of assets, while an upfront buyer was not required for the other. The consent order states that Linde will have to find FTC-approved buyer for the liquid oxygen and liquid nitrogen assets within six months, however, the FTC required Linde to divest the bulk refined helium assets to an upfront buyer, Nippon Sanso.
Continue reading "Upfront Buyer and No Upfront Buyer Required in Linde/BOC" »
On July 7, the Federal Trade Commission (“FTC”) challenged Hologic Inc.’s 2005 purchase of Fischer Imaging Corporation’s breast cancer screening and diagnosis business. Hologic closed its $32 million transaction without reporting it to the FTC because Hologic’s acquisition of Fischer’s assets was not reportable under the Hart-Scott-Rodino Premerger Notification Act (“HSR Act”), as it was valued at less than the current $56.7 million filing threshold. Accordingly, the FTC did not have an opportunity to investigate the deal before the parties consummated the transaction.
Continue reading "FTC Continues to Challenge Consummated Mergers" »
On June 27, the U.S. Supreme Court agreed to hear arguments from Verizon Communications Inc., AT&T Inc., BellSouth Corp., and Qwest Communications International, Inc. in a case that may either help companies' efforts to fight off antitrust law suits, or promote consumers challenges to what appears to be illegal coordination of activities by competing companies in concentrated markets that keep prices high.
Continue reading "Supreme Court Will Hear Telecommunication Collusion Case" »
On June 26, the United States Supreme Court declined to hear the Federal Trade Commission’s (“FTC”) appeal of the Eleventh Circuit’s decision that Schering-Plough Corp. (“Schering”) legally paid two generic drug competitors to stay out of the market as part of a settlement to patent litigation. In the past, the FTC has taken a consistently aggressive approach that a money payment from a branded drug company to a generic company that delays the entry of a generic version of a branded drug is illegal.
On April 14, the Justice Department’s Antitrust Division (“Antitrust Division”) announced a $1.8 million civil settlement against merger partners Qualcomm and Flarion Technologies alleging “gun-jumping” violations of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”). The action underscores the Antitrust Division’s resolve to vigorously scrutinize the conduct of merging parties prior to consummation of the transaction.
Continue reading "Jumping the HSR Gun Is Costly for Qualcomm" »
