Antitrust Lawyer Blog Commentary on Current Developments

Articles Tagged with HSR Act

On January 21, 2016, the Federal Trade Commission announced its annual revisions to the monetary thresholds of the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended, (the “HSR Act”) and Section 8 of the Clayton Act.

The revised thresholds are expected to become effective in late February 2016, 30 days after the date of their publication in the Federal Register.  These changes increase the dollar thresholds necessary to trigger the HSR Act’s premerger notification reporting requirements.  The FTC also increased the thresholds for interlocking directorates under Section 8 of the Clayton Act.

The HSR Act requires parties to certain transactions to notify the Federal Trade Commission and Department of Justice, and to observe a waiting period prior to consummation. The HSR Act enables antitrust regulators to review transactions, investigate and address potential competitive concerns prior to consummation, and also carries with it monetary penalties for failure to comply.

On January 6, 2005, the Commission ruled that Chicago Bridge & Iron Company (“CB&I”) illegally acquired Pitt-Des Moines, Inc.’s (“PDM”) Engineered Construction and Water Divisions. The FTC did not initially investigate the deal when the parties filed their Hart Scott Rodino notification forms. Eight months after the HSR waiting period expired, the FTC challenged the merger administratively before an FTC Administrative Law Judge (“ALJ”). The CB&I case serves as a powerful reminder that the expiration of the HSR waiting period does not mean that the transaction has been approved by the FTC or cleared from a potential challenge.

According to Commissioner Swindle’s thorough and well-reasoned ruling, on behalf of a unanimous Commission, the acquisition provided CB&I with a monopoly or near-monopoly position in each of four relevant markets and violated Section 7 of the Clayton Act and Section 5 of the FTC Act. To restore competition as it existed prior to the merger, the Commission ordered CB&I to create two separate, stand-alone divisions capable of competing in the relevant markets and to divest one of those divisions within six months. The Commission’s goal is to restore competition as it existed prior to the merger.

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