Antitrust Lawyer Blog

FTC Closes Investigation of Express Script’s Proposed Acquisition of Medco

Wed, 11 Apr 2012 15:57:34 -0500

On April 2, 2012, the Federal Trade Commission (“FTC”) closed its investigation of Express Scripts, Inc.’s ("Express Scripts") proposed acquisition of pharmacy benefits manager ("PBM"), Medco Health Solutions, Inc. ("Medco") Express Scripts consummated its acquisition of Medco on the same day.

DOJ Requires Divestitures Allowing International Paper to Acquire Temple-Inland

Fri, 10 Feb 2012 15:21:23 -0500

On February 10, 2012, the Department of Justice (“Department”) entered into a settlement that allows International Paper to acquire Temple-Inland. The settlement agreement requires International Paper and Temple-Inland Inc. to divest three containerboard mills in order to proceed with their $4.3 billion merger. The Department said that the merger, as originally proposed, would have substantially lessened competition in the production and sale of containerboard, the type of paper used to make corrugated boxes, in the United States. The following mills are to be sold: (1) both the New Johnsonville Mill and the Ontario Mill, AND (2) either the Port Hueneme Mill or the Henderson Mill, but not both mills.

FTC to Revise Investigatory Rules, Attorney Disciplinary Rules

Mon, 23 Jan 2012 10:19:44 -0500

On January 13, 2012, the FTC issued proposed amendments to Parts 2 and 4 of its Rules of Practice (“Rules”). Written comments must be received by March 23, 2012.

Commission Declines to Seek Certiorari to Review Eighth Circuit’s Decision in FTC v. Lundbeck, Inc.

Fri, 20 Jan 2012 15:28:29 -0500

On January 20, 2012, the Federal Trade Commission (“Commission”) issued a statement by Chairman Leibowitz, Commissioner Ramirez, and Commissioner Brill stating the Commission’s intention not to seek review by the U.S. Supreme Court of the Eighth Circuit Court of Appeal’s decision in FTC v. Lundbeck, Inc. This statement was accompanied by a separate statement by Commissioner Rosch.

Promedica Health System Ordered to Divest St. Luke's Hospital

Fri, 06 Jan 2012 12:33:16 -0500

In an initial decision issued on January 5, 2012, FTC Chief Administrative Law Judge D. Michael Chappell ordered ProMedica Health System Inc to divest recently-acquired St. Luke’s Hospital to an FTC-approved buyer within 180 days after the order becomes final. See http://www.ftc.gov/os/adjpro/d9346/120105promedicadecision.pdf

D.C. Circuit Gives FTC Broad Discovery Rights

Tue, 03 Jan 2012 08:44:12 -0500

In June 2009, the Federal Trade Commission (“FTC” or “the Commission”) authorized the staff to conduct an investigation to determine whether Church & Dwight was using exclusionary practices such as conditioning discounts or rebates to retailers on the percentage of shelf or display space dedicated to Trojan brand condoms and “other products” sold and distributed by Church & Dwight.

China’s Ministry of Commerce Passes Measures on Unreported Transactions

Sat, 31 Dec 2011 17:45:24 -0500

On December 30, 2011, China’s Ministry of Commerce (“MOFCOM”), the government agency tasked with merger review, formally promulgated new rules providing MOFCOM with clear procedural rules (and powers) to investigate and deal with reportable transactions that were not notified. These Provisional Measures on the Investigation and Treatment of Failure to Report Concentration of Undertakings (“Provisional Measures”) went into effect on February 1, 2012.

FTC Settles With Pool Supplier Regarding Exclusive Dealing Practices

Tue, 22 Nov 2011 14:39:55 -0500

On November 21, 2011, the Federal Trade Commission (“FTC”) settled allegations of violations of Section 5 of the Federal Trade Commission Act, 15 U.S.C. 45 (“FTC Act”) against Pool Corporation (“PoolCorp”). PoolCorp and the FTC reached a proposed consent agreement resolving charges that PoolCorp used exclusionary acts and practices to maintain its monopoly power in the pool product distribution market in violation of Section 5.

Hudson Institute’s Antitrust Policy in an Age of Rapid Innovation

Tue, 01 Nov 2011 13:54:14 -0500

In light of the Department of Justice’s attempt to block telecom giant, AT&T from acquiring T-Mobile, the Hudson Institute recently released a report discussing antitrust policy as it applies to the growth of innovation. See Irwin Stelzer, Antitrust Policy in an Age of Rapid Innovation, BRIEFING PAPER (Hudson Inst., Washington, D.C.) Oct. 2011.

The Foreign Trade Antitrust Improvements Act, Twombly & Iqbal: Is Compliance Practical?

Tue, 01 Nov 2011 13:33:32 -0500

On September 23, 2011, the Seventh Circuit Court of Appeals dismissed a case brought by a group of corporations that filed an antitrust suit against the major players in the potash industry, ruling that plaintiffs failed to allege specific facts sufficient to plead a plausible “direct, substantial, and reasonably foreseeable” connection between the alleged foreign anticompetitive activity and the domestic potash market. As the Foreign Trade and Antitrust Improvements Act (“FTAIA” or “Act”) develops through case law, antitrust lawyers and academics hoped that this latest case, Minn-Chem Inc. v. Agrium Inc., would provide more guidance in interpreting the Act’s three-step test. However, it seems that this case spurred more questions than answers.

The FTAIA limits enforcement of U.S. antitrust laws in situations where there are no clear effects on U.S. consumers. The Act aims to regulate foreign trade or commerce with foreign nations via a three-step test: (1) Did the conduct involve U.S. import trade or import commerce? (2) If not, does the conduct involve trade with foreign nations? and (3) If the conduct involves trade with foreign nations, does it have a “direct, substantial, and reasonably foreseeable effect” on the U.S. market?

DOJ Settles With Grupo Bimbo on Sara Lee Acquisition

Fri, 21 Oct 2011 15:14:53 -0500

On October 21, 2011, the DOJ Antitrust Division (“DOJ”) filed a civil lawsuit in U.S. District Court in Washington, D.C. to prevent Grupo Bimbo S.A.B. de C.V. and BBU Inc. (collectively, “BBU”) from acquiring Sara Lee Corporation’s (“Sara Lee”) North American Fresh Bakery business. The DOJ simultaneously filed a Proposed Final Judgment, reflecting a settlement with BBU and Sara Lee upon which they agreed to divestitures of certain sliced bread brands and associated assets in select areas where the two companies compete head-to-head in order to proceed with the acquisition. Such divestitures would resolve competitive concerns alleged in the suit.

When Private Enforcement Meets Leniency

Wed, 03 Aug 2011 14:31:51 -0500

On June 14, 2011, the European Court of Justice decided that EU law allows third parties, who are suing cartel members for money damages, access to information and evidence gathered in criminal antitrust investigations. The decision may mean the end for leniency procedures, now that cartel members looking for a way out are faced with potential disclosure of the often incriminating information they provide the competition authorities.

An Overview of the Amendments to the HSR Form

Wed, 13 Jul 2011 14:25:39 -0500

On July 7, 2011, the FTC and DOJ (the “Agencies”) announced the final revisions to the Hart-Scott-Rodino (“HSR”) Premerger Notification Rules and the Premerger Notification and Report Form. The changes were made to reduce the filing burden and streamline the form parties must file when seeking antitrust clearance of proposed mergers and acquisitions under the HSR Act and the Premerger Notification Rules.

Local Price Cutting Keeps Merger Case in DC

Thu, 09 Jun 2011 17:25:23 -0500

On June 6, 2011, the US District Court for the District of Columbia denied defendant H&R Block’s motion to transfer venue. The district court ruled that H&R Block failed to meet their burden to show that a transfer of this case to the Western District of Missouri is warranted in the interests of justice.

Accountable Care Organizations: Dilemma or Opportunity

Thu, 02 Jun 2011 16:53:43 -0500

The Affordable Care Act of 2010 encourages health care providers to form integrated organizations to jointly offer services in order to reduce costs and improve the quality of health care in the United States. Section 3022 of the Act provides for the formation of Accountable Care Organizations (“ACOs”) to serve fee-for-service Medicare beneficiaries through Medicare’s Shared Savings Program (“SSP”). ACOs must sign up with the Department of Health and Human Services’ Centers for Medicare and Medicaid Services (“CMS”) to participate in the program for at least three years.