Antitrust Lawyer Blog Commentary on Current Developments

Articles Tagged with DOJ

Anthem Cigna Merger Blocked

February 8, 2017

On February 8, 2017, Judge Jackson blocked Anthem Inc.’s (“Anthem”) acquisition of Cigna Corp. (“Cigna”) finding that the merger would likely harm competition.  The district court wholly refuted the parties’ argument that efficiencies would be pro-consumer and a counter-weight to potential competitive problems.  U.S. District Court Judge Amy Berman Jackson also recognized the highly abnormal relationship between Anthem and Cigna, saying the Department of Justice’s Antitrust Division (“DOJ”) was not the only party in the case raising questions about the merger.

On January 18, 2017, the Justice Department’s Antitrust Division (“Antitrust Division”) announced a $600,000 civil settlement against Duke Energy for illegal “gun-jumping” violations of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”).

The HSR Act requires that parties to certain acquisitions notify the antitrust enforcement agencies and observe a waiting period before consummating the transaction or transferring beneficial ownership of a business.  Duke Energy prematurely obtained beneficial ownership over a power plant through a tolling agreement before filing its HSR pre-notification form and observing the HSR waiting period.

Background

About a week before taking office, President-elect Trump had two high level meetings with CEOs of companies that are involved in significant acquisitions currently under antitrust review by the Department of Justice’s Antitrust Division.  The meetings raise questions about the integrity and independence of the DOJ’s merger reviews going forward under a Trump administration. 


AT&T/Time Warner

On January 12, 2017, AT&T Inc. (“AT&T”) Chief Executive Officer Randall Stephenson said that in his meeting with President-elect Donald Trump they touched on job creation, investment and competition, but he noted that AT&T’s merger with Time Warner Inc. (“Time Warner”) did not come up.  We find that hard to believe given President-elect Trump’s open reservations about the transaction and his ongoing battle with CNN.

On August 23, 2016, Senate Judiciary Committee Chairman Chuck Grassley announced a hearing on the increasing consolidation within the seed and chemical industry.

The hearing will be held in late September.  Senator Grassley said that “The seed and chemical industries are critical to agriculture and the nation’s economy, and Iowans are concerned that this sudden consolidation in the industry could cause rising input costs in an already declining agriculture economy.” The hearing will focus on the transactions currently being reviewed by antitrust regulators, and the current trend in consolidation of the seed and chemical industries.

While details have not been finalized, views from the companies under review by antitrust regulators, consumers and antitrust experts will all be represented at the hearing.  “In most instances when you have less competition, prices go up, and consumers pay more,” he said in an interview.

On August 16, 2016, Senator Charles Grassley (R-IA), chairman of the Senate Judiciary Committee, wrote a letter to FTC Chairwoman Edith Ramirez and DOJ Antitrust Division Head, Renata Hesse in which he expressed concerns regarding two major mergers in agricultural technology and seeds that could potentially hurt competition in the industry and make it harder for smaller companies to compete.

The senator urged the FTC, which is reviewing the purchase of Syngenta AG (“Syngenta”) by the China National Chemical Corporation (“ChemChina”), and the DOJ, which is analyzing the merger of The Dow Chemical Company (“Dow”) and E. I. du Pont de Nemours and Company (“DuPont”), to coordinate their reviews.  Senator Grassley wrote that “it is important that these transactions not be reviewed in isolation.”   He urged the DOJ and FTC to collaborate and to gain input from the Department of Agriculture as part of their analysis of the agricultural biotechnology and seed industry and the competitive impact of these deals.

Senator Grassley also expressed concern that “the convergence of these proposed transactions – as well as others currently being discussed – will have an enhanced adverse impact on competition in the industry and raise barriers to entry for smaller companies”; “further concentration in the industry will impact the price and choice of chemicals and seed for farmers, which ultimately will impact choice and costs for consumers”; and “further consolidation will diminish critical research and development initiatives.”

On July 21, the U.S. Department of Justice’s Department of Justice (“DOJ”) and several state attorneys general filed two lawsuits, challenging two major health insurer mergers: (1) Anthem, Inc.’s (“Anthem”) proposed $48.4 billion purchase of Cigna Corporation (“Cigna”) and (2) Aetna Inc.’s (“Aetna”) planned $37 billion acquisition of Humana Inc. (“Humana”).

While the cases are substantially different, both complaints contain some similar allegations.  Both complaints describe the proposed mergers as consolidation of the “big five” insurers to the “big three, each of which would have almost twice the revenue of the next largest insurer.”   Taken together, they would cut the number of major health insurers from five to three, with UnitedHealth Group Incorporated (“UnitedHealth”) being the only other remaining large player.  Both complaints say the mergers will harm competition by “eliminating two innovative competitors – Humana and Cigna – at a time when the industry is experimenting with new ways to lower healthcare costs.”  Both complaints allege that the mergers will restrain competition in the sale of individual policies on the public insurance exchanges.

However, the cases are different in that they focus on different product and geographic markets and that the Anthem/Cigna complaint contains a monopsony claim while the Aetna/Humana complaint does not.  The Anthem/Cigna complaint alleges that that merger will restrain competition in the “purchase of healthcare services by commercial health insurers,” as well as the sale of commercial health insurance to national accounts and large-group employers, and the sale of individual policies on the public insurance exchanges.  The Anthem/Cigna complaint also includes an allegation that the merger would substantially increase Anthem’s ability to dictate the reimbursement rates it pays hospitals, doctors, and healthcare providers, threatening the availability and quality of medical care.  The DOJ alleges that Anthem already has bargaining leverage over healthcare providers and this acquisition would make the situation worse in 35 metropolitan areas.  This is otherwise known as a monopsony theory.   The Aetna/Humana complaint alleges anticompetitive effects only in the sale of Medicare Advantage policies to individual seniors and the sale of individual polices on the public exchanges.   The Aetna complaint does not charge a violation in the market for the purchase of healthcare services, and therefore does not rely on a monopsony theory.  Even where the complaints overlap with respect to product market as is the case with the sale of individual policies on the public insurance exchanges, the geographic markets are different.

Andre P. Barlow
Few missions are as important to the U.S. Department of Justice’s Antitrust Division as preventing anti-competitive mergers or permitting them with adequate conditions to prevent competitive harm. After all, a merger is forever — fixing it after the fact is too messy.

The DOJ is currently investigating Anheuser-Busch InBev SA/NV’s (“ABI”) acquisition of SABMiller PLC, the largest beer merger in history, as well as its proposed divestiture of SABMiller’s interest in the MillerCoors LLC Joint Venture to Molson Coors Brewing Company. These proposed transactions lock in place the two largest beer competitors in the United States while fundamentally changing the dynamics in the beer industry for smaller brewers, distributors, wholesalers and retailers. While ABI maintains that the proposed transactions do not change the competitive landscape, the DOJ knows better.

Indeed, the DOJ’s recent approach in approving Charter Communications Inc.’s acquisition of Time Warner Cable Inc. (“TWC”) and its related acquisition of Bright House Networks LLC to create New Charter, the merged firm, is instructive. Despite no geographic overlap in any local market, the DOJ required comprehensive behavioral conditions to prevent New Charter from engaging in future anti-competitive conduct against its smaller rivals. The DOJ should take the same tough and sophisticated approach to protecting consumers from the much larger ABI/SABMiller merger and the new ownership by Molson Coors, which will create two beer giants that will dwarf its rivals.

On April 25, 2016, the DOJ entered into settlement agreement approving Charter Communications, Inc.’s (“Charter”) acquisition of Time Warner Cable Inc. (“TWC”) and its related acquisition of Bright House Networks, LLC to create New Charter as long as the parties agreed to certain behavioral conditions.

DOJ’s Vertical Concerns Related to the Creation of New Charter

New Charter became the second largest cable company and third largest Multichannel Video Programming Distributor (“MVPD”).  MVPDs include cable companies such as Comcast, TWC and Charter, but also direct broadcast satellite providers (i.e., DirectTV and Dish Network) and telephone companies like AT&T and Verizon.

Corona’s advertising slogan encourages consumers to find their beach, but consumers may soon have trouble finding Corona.

In 2013, the U.S.Department of Justice required Anheuser-Busch InBev (ABI) to grant a perpetual and exclusive U.S. license to some of its Grupo Modelo Mexican beer brands that were at the time competing in the U.S. market, including Corona Extra, Modelo Especial and other popular brands, to Constellation Brand Inc.[1] In addition to the sale, the DOJ put a number of conditions on ABI to ensure that the Grupo Modelo Mexican beer brands, including Corona, remained competitive in the U.S. market, including critical protections to make sure distribution was open and independent. This summer will be the third anniversary of the sale of the Modelo American portfolio to Constellation and the lapse of important protections could leave many Corona consumers scrambling to find their beer of choice.

Prominent among the conditions the DOJ required in its consent decree was the sale of the Piedras Negras Brewery in Nava, Coahuila, Mexico to Constellation. The sale was required so Constellation can brew the Modelo brands itself for importation into the United States, and not rely on its chief competitor, ABI. Accompanying the sale of Piedras Negras was a condition that Constellation obtain its supply of necessary materials from ABI for a three-year period. That provision is about to lapse.

A couple of months ago, ABI and Constellation agreed to extend their supply agreement by another year, making Constellation dependent on ABI for necessary inputs through June 2017. However, this reliance on its chief rival for inputs with no extension of other important protections will be a recipe for disaster, as Constellation is still in the transition of becoming a fully independent brewer. Reliance on ABI has not entirely helped it in its transition, and Constellation is still in a very precarious position. For example, there have been two recalls of Corona due to defective glass bottles in less than two years.

In addition to the supply agreement, the DOJ required protections for independent ABI beer distributors carrying the Modelo American portfolio brands, which have been pivotal to the success of Constellation’s stewardship of the Modelo American portfolio brands. In its review of the ABI/Modelo deal, the DOJ stated that “[e]ffective distribution is important for a brewer to be competitive in the beer industry.” Recognizing that independent distribution is the artery that spurs consumer choice and the explosion of craft beer, the DOJ prohibited ABI from adversely affecting a distributor’s ability to carry the Modelo American portfolio brands, including Corona, for a three-year period.

ABI is known to offer incentives and other tactics to exclude craft and other non-ABI brands from independent distributors’ brand portfolios. In fact, ABI’s current distributor incentive program already encourages the exclusion of non-ABI brands in exchange for marketing payments and favored position. ABI will soon be able to use these incentives and tactics against the Modelo American portfolio brands, including Corona. Accordingly, there is substantial concern that ABI will attempt to ice Corona out of many distributors’ portfolios once this protection provision expires this summer.

Indeed, ABI has strategically timed the roll out of its Mexican beer brand Estrella Jalisco (also under the Modelo brand, which is controlled by ABI outside of the United States), designed to compete with Corona in the U.S. market, to roughly coincide with the lapse of these protection provisions as well as the important Cinco de Mayo and kick-off of summer sales seasons. ABI will undoubtedly push its independent distributors to shift focus away from the Modelo American portfolio brands, including Corona, to Estrella Jalisco once the DOJ protections expire in June.

The DOJ’s consent decree and the protections put in place for distributors of the Modelo American portfolio brands have undoubtedly allowed it to flourish over the last few years in the United States. Hence, Constellation’s growth has exploded since the acquisition of the U.S. rights to the Modelo American portfolio brands, and its growth has far outpaced the overall growth of the U.S. beer market.

To keep the U.S. beer markets competitive, the DOJ needs to act to extend the consent decree and the protection of Constellation through independent distributors or risk losing this important source of competition that gives consumers choice and keeps prices down. The marketplace will be able to “find their beach” if ABI is prevented from pushing out the competition.

[1] Final Judgment, U.S. v. Anheuser-Busch InBev SA/NV and Grupo Modelo S.A.B. de C.V., No. 13-cv-00127-RWR (D.D.C. Oct. 24, 2013), ECF No. 48.

Andre Barlow
(202) 589-1838
abarlow@dbmlawgroup.com

 

On December 15, 2015, the Department of Justice announced that it reached a settlement with AMC Entertainment Holdings Inc. and SMH Theatres Inc. (Starplex Cinemas) that requires AMC to divest two movie theaters in Connecticut and New Jersey to resolve the DOJ’s antitrust concerns.

The DOJ found that AMC’s and Starplex Cinemas’ theaters in the Berlin, Connecticut, and East Windsor, New Jersey, areas compete to attract moviegoers on ticket prices as well as through the quality of the viewing experience, such as by offering moviegoers the most sophisticated sound systems, largest screens, best picture clarity, premium seating, and high quality food and drink.  Because AMC and Starplex Cinemas are each other’s most significant competitor in the Berlin and East Windsor areas, the DOJ alleged that the proposed acquisition would likely reduce price competition as well as the overall quality of the movie viewing experience. 

Under the terms of the proposed consent decree, the Starplex Town Center Plaza 10 in East Windsor, New Jersey, and the Starplex Berlin 12 in Berlin, Connecticut, must be divested to a buyer or buyers approved by the United States.  The DOJ worked with the Connecticut Attorney General on the investigation and Connecticut is a party to the consent agreement.