International Highlights

September 16, 2010

New U.K. Merger Assessment Guidelines Introduce More Flexibility In Defining Markets

On September 16, 2010, the United Kingdom's Office of Fair Trading (“OFT”) and the Competition Commission (“CC”) published the final version of their new joint Merger Assessment Guidelines (“Guidelines”). The Guidelines expand and revise the previous guidance published separately by OFT and CC in various publications and attempt to clarify the 2002 Enterprise Act.

Key revisions compared to previous guidance include the following:

New Guidelines expand the concept of 'theories of harm' and uses such theories in assessing whether or not a substantial lessening of competition (“SLC”) has been created by the merger. The Guidelines explain that a merger gives rise to an SLC when it has any impact on rivalry that is likely to cause harm to customers. Therefore, evidence on likely adverse effects will be a key factor in the assessment.

July 28, 2010

FTC Enters into Settlement Agreement with Nufarm Regarding Consummated Transaction

by Doyle, Barlow & Mazard PLLC

On July 28, 2010, the FTC entered into a settlement agreement with Australian based Nufarm Limited (“Nufarm”) regarding its March 5, 2008 acquisition of all of the shares of United Kingdom-based A.H. Marks Holding Limited (“A.H. Marks”).

Both companies held or had access to regulatory approvals from the United States Environmental Protection Agency (“EPA”) to sell certain herbicides in the United States: MCPA, MCPP-p, and 2,4DB. These herbicides are relied upon by farmers, landscapers, and consumers. Before the transaction, both Nufarm and A.H. Marks sold the raw herbicides to agricultural formulators who used them to make formulated herbicides.

The FTC alleged that the acquisition resulted in Nufarm obtaining monopoly of two phenoxy herbicide markets (MCPA and MCPP-p) and reduced a third market (2,4DB) to a duopoly. Furthermore, FTC alleged that the merger would result in higher prices and other anticompetitive effects, because there are no comparable substitutes on the market for these three herbicides.

March 29, 2010

DOJ Decides Not to Challenge Cisco’s Acquisition of Tandberg

by Doyle, Barlow & Mazard PLLC

On March 29, the DOJ announced that it will not challenge Cisco Systems Inc.’s acquisition of Tandberg ASA. The EU also cleared the transaction, however, it required conditions for its approval.

The DOJ concluded that the proposed deal was not anticompetitive because of the evolving nature of the videoconferencing market and the commitments that Cisco made to the European Commission (EC) to facilitate interoperability.

During the course of its investigation, the DOJ cooperated closely with the EC in its parallel review of the transaction, aided by waivers from the parties and industry participants. This permitted the agencies to share information of likely competitive effects and potential remedies. Regulators on both sides of the Atlantic agree that this investigation was a model of international cooperation between the United States and the European Commission.

October 14, 2009

FTC SETTLES WITH PFIZER REGARDING ITS ACQUISITION OF WYETH

by Doyle, Barlow & Mazard PLLC

On October 14, 2009, the Federal Trade Commission (“FTC”) settled with Pfizer Inc. regarding its proposed $68 billion acquisition of Wyeth.

According to the FTC, the proposed transaction would have reduced competition in several U.S. markets for the manufacture and sale of animal vaccines and animal pharmaceutical products. Veterinarians and other animal health product customers could have seen the prices of these goods increase. Furthermore, the FTC believes that the entry of new competitors in these markets would not be timely, likely, nor sufficient to offset the loss of competition.

The consent order requires Pfizer to sell approximately half of Wyeth’s Fort Dodge U.S. animal health business, including vaccines for cattle, dogs, and cats, and other pharmaceutical products used in treating cattle, dogs, cats, and horses, to Boehringer Ingelheim Vetmedica, Inc. (“Boehringer”), within 10 days of the acquisition. Pfizer is required to provide Boehringer with key services to help it compete after the consummation of the deal. In addition, the order requires Pfizer to return its exclusive distribution rights for a product to treat tapeworms in horses to Virbac S.A., the manufacturer of the product.

July 17, 2009

INDIAN COMPETITION LAW UPDATE

by Doyle, Barlow & Mazard PLLC

Although the Competition Commission of India (“CCI”) became functional on April 1, 2008, several other provisions of the Competition (Amendment) Act, 2007 (“Competition Act”) have not been notified. According to the Indian legislative process, the Act, even though passed by the Parliament, has to be notified by the President of India to become functional. Section 66 of the Competition Act requires the dissolution of the Monopolies and Restrictive Trade Practices Commission (“MRTPC”), which to this point was the erstwhile competition authority in the country. This section has not been notified. As a result, there has been a multiplicity of regulators. The CCI has already begun seeing cases with is first formal complaint of “cartelization” coming from the Multiplex Association of India against the United Producers and Distributors Forum, Association of Motion Pictures and TV Program Producers; and Film and TV Producers Guild of India. However, the MRTPC is also continuing to take cases (at least 30 a month).

In addition, even though the merger control regulations, under the Competition Act, 2002 were issued in January 2008, they are yet to be enacted. As such there seems to be some overlap regarding the role of the CCI in merger regulations as well.

Camelia C. Mazard

June 3, 2009

CHRISTINE A. VARNEY TO PARTICIPATE IN INTERNATIONAL COMPETITION NETWORK CONFERENCE IN ZURICH

by Doyle, Barlow & Mazard PLLC

From June 3-5, 2009, Christine A. Varney, the Assistant Attorney General in charge of the Department of Justice’s (“DOJ”) Antitrust Division, will participate in the eighth annual International Competition Network (“ICN”) conference in Zurich, Switzerland. She will join senior government antitrust officials and other antitrust experts from multinational organizations and the private sector.

The conference will address the following issues: unilateral conduct, mergers, cartels, advocacy and competition policy implementation. Created in 2001 by 15 government antitrust agencies from around the world, including the U.S. Federal Trade Commission and U.S. Department of Justice, the ICN includes 107 member agencies from 96 jurisdictions.

Andre Barlow

March 12, 2009

CANADA AMENDS ITS COMPETITION LAW

by Doyle, Barlow & Mazard PLLC

On March 12, 2009, the most significant amendments in 20 years to Canada’s Bill-C10 Competition Act and Investment Canada Act received Royal assent. All parts of the Bill C-10 amendment will take immediate effect except the new hybrid/dual track conspiracy provisions which will be delayed for a year. Some of the provisions that will have immediate effect include:

December 19, 2008

FTC ORDERS DIVESTITURE IN TEVA’s ACQUISITION OF BARR

by Doyle, Barlow & Mazard PLLC

On December 19, 2008, Teva Pharmaceuticals Industries Ltd.’s settled charges that its proposed $8.9 billion acquisition of rival generic drug maker Barr Pharmaceuticals Inc. would be anticompetitive. The consent order required Teva and Barr to sell assets in 29 relevant markets, including generic drugs commonly used to treat acid reflux disease, various types of cancer, bacterial infections, diabetes, and depression.

According to the complaint, Teva’s acquisition of Barr as proposed would lessen competition in each of the following U.S. generic drug markets: 1) tetracycline hydrochloride (HCl) capsules; 2) chlorzoxazone tablets; 3) desmopressin acetate tablets; 4) metoclopramide HCl tablets; 5) carboplatin injection; 6) tamoxifen citrate tablets; 7) metronidazole tablets; 8) trazodone HCl tablets; 9) glipizide/metformin HCl tablets; 10) cyclosporine liquid; 11) cyclosporine capsules; 12) flutamide capsules; 13) mirtazapine orally disintegrating tablets (ODT) ; 14) deferoxamine injection; 15) epoprostenol sodium (freeze-dried powder) injection (epop); 16) weekly fluoxetine capsules; and 17) 13 generic oral contraceptive markets.

Under the terms of the proposed consent agreement, the companies would be required to assign and divest to Watson, Teva’s rights and assets for generic: 1) chlorzoxazone tablets; 2) deferoxamine injection; 3) fluoxetine weekly capsules; 4) carboplatin injection; and 5) metronidazole tablets. The consent agreement also requires the companies to assign and divest to Watson all of Barr’s rights and assets for generic: 1) metoclopramide HCl tablets; 2) cyclosporine liquid; 3) cyclosporine capsules; 4) desmopressin acetate tablets; 5) epop; 6) flutamide capsules; 7) glipizide/metformin HCl tablets; 8) mirtazapine ODT; 9) tamoxifen citrate tablets; and 10) tetracycline HCl capsules. In addition, the companies must divest rights and assets related to trazodone HCl tablets and the 13 oral contraceptive products to Qualitest.

December 4, 2008

FRENCH COMPETITION COUNCIL FINES FOUR OIL COMPANIES FOR FORMING FUEL SUPPLY CARTEL

by Doyle, Barlow & Mazard PLLC

On December 4, 2008, the French Competitive Council (“Council”) fined four oil companies, Chevron-Texaco, Total, Exxon, and Shell, €41.1 million for their role in price fixing of fuel for Air France flights on the French Indian Ocean island of La Reunion. According to the Council, the four companies violated the European Community Treaty’s Article 81 and a corresponding French law provision.

According to the complaint, the four companies colluded to maintain market shares and increase prices by restricting the supply of kerosene used to fuel Air France flights on La Reunion from 2002-2003. As a result, Air France was accepted the 30% increase in prices from the four oil companies.

This investigation marks the first time the Council received assistance from the UK’s Office of Fair Trading (“OFT”). The Council received information regarding the companies, which are based their through the OFT. Air France may still seek compensation from the oil companies as well, according to the findings of the Council.

November 18, 2008

UK OFT CLEARS INBEV’S $52 BILLION ACQUISTION OF ANHEUSER-BUSCH

by Doyle, Barlow & Mazard PLLC

On November 18, 2008, UK’s Office of Fair Trading (“OFT”) cleared InBev N.V/S.A.’s (“InBev”) $52 billion acquisition of Anheuser-Busch Companies Inc. (“Anheuser”). The new company, Anheuser-Busch InBev, will own InBev’s Stella Artois and Beck’s lager brands and Anheuser’s Budweiser lager brand.

The transaction cleared the OFT without any conditions, even though the newly merged company would own a market share ranging from 25% to 50%, depending on market segmentation. The investigation took 65 days. The OFT investigated two markets: the “on trade market,” which included pubs, bars, and restaurants, and the “off trade market,” which included supermarkets, off-licenses, and other retail outlets.

According to sales in the “on-trade market,” the OFT found that InBev’s Stella Artois was the leading premium draught lager while Budweiser was the leading bottled lager. InBev’s Beck’s brand was the second leading bottled lager, in terms of sales. However, the OFT determined that because of the small amount of sales of premium lager in bottles, the bottled Budweiser did not pose a significant competitive threat to Stella Artois, whose competitors are other premium and standard draught lager beers.