Merger Control 2020

Last Updated July 13, 2020

USA

Law and Practice

Authors



Dechert LLP is highly regarded for its innovative antitrust advice in the most challenging settings. The firm’s antitrust practice has 11 partners and 27 counsel and associates in the United States, Brussels, France and Germany. Across industries and regions, industry leaders rely on Dechert’s market knowledge and proven counsel to secure clearance for high-value and challenging deals, defeat monopolisation claims, resolve cartel or civil investigations, defeat class actions, and promote and ensure antitrust compliance. Dechert combines its knowledge of antitrust law with hands-on experience in government affairs, economics, communications, and a pragmatic approach to commercial issues. In 2020 Dechert secured a trial victory following the FTC’s attempt to block the Evonik/PeroxyChem merger, the FTC’s first loss in a merger trial in federal court in Washington, DC since 2007 when Dechert successfully represented Whole Foods Market in its acquisition of Wild Oats. Dechert also recently secured approval for CVS Health’s USD70 billion acquisition of Aetna, the largest healthcare deal ever.

The Clayton Act is the primary merger control legislation in the USA and precludes acquisitions of stock or assets the effect of which may be substantially to lessen competition. Mergers may also be challenged under the Sherman Act, which prohibits agreements that unreasonably restrain trade as well as monopolisation, attempted monopolisation and conspiracy to monopolise, or the Federal Trade Commission Act (FTC Act), which focuses on unfair methods of competition and unfair or deceptive acts or practices. The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act), which governs the premerger notification process in the USA, is incorporated into the Clayton Act. Every state, as well as the District of Columbia, Puerto Rico and the Virgin Islands, also has its own antitrust law.

The FTC and the Antitrust Division of the Department of Justice (DOJ) (collectively, "the Agencies") share jurisdiction for reviewing proposed mergers. The Agencies jointly issued the current version of the Horizontal Merger Guidelines in 2010, which outline the principal analytical techniques, practices and enforcement policy regarding mergers of actual or potential competitors under the federal antitrust laws. The Agencies also jointly issued the Commentary on the Horizontal Merger Guidelines in 2006, which provides detailed insights into the Agencies’ decision-making process regarding a large number of merger matters, and the 1996 Statements of Antitrust Enforcement Policy in Health Care for hospital mergers. On 10 January 2020, the DOJ formally withdrew its 1984 Non-Horizontal Merger Guidelines and the Agencies jointly issued draft Vertical Merger Guidelines issued, which were finalised on 30 June 2020. The new Vertical Merger Guidelines outline the current “principal analytical techniques, practices and enforcement policy” concerning strictly vertical mergers, “diagonal mergers”, and mergers of complements.

Parties to a proposed joint venture or other type of business combination outside the scope of the HSR Act may request a DOJ opinion as to whether the proposed conduct is lawful under its Business Preview programme. Similarly, the FTC’s Rules of Practice provide that the Commission or its staff may issue advisory opinions to help clarify FTC rules and decisions relating to proposed conduct. FTC advisory opinions concerning a proposed merger or acquisition are unlikely to be appropriate except in rare circumstances such as small hospital mergers that may fall within the “safety zone” described in the 1996 Statements of Antitrust Enforcement Policy in Health Care.

Pursuant to the HSR Act, the FTC is authorised to prescribe the regulations and format of notification that are “necessary and appropriate” to carry out the purposes of the HSR Act. The FTC’s Premerger Notification Office occasionally issues guidance relating to the application of the HSR Act and related regulations, in the form of both formal and informal interpretations, as well as posts on its Competition Matters blog.

While the federal antitrust laws apply to most domestic transactions and foreign transactions affecting the USA, transactions in heavily regulated industries (banking, healthcare, telecommunications, pharmaceuticals, railroads and defence) may be subject to additional approvals.

Banking transactions may require prior approval from the Federal Reserve Board; telecommunications transactions may require approval from the Federal Communications Commission; certain mergers and acquisitions by electric utility companies may require prior approval by the Federal Energy Regulatory Commission; and the Food and Drug Administration may require approval for transactions involving companies in the food safety, tobacco, pharmaceutical, biopharmaceutical and medical device industries. The Surface Transportation Board has exclusive authority to approve proposed railroad mergers, although it must “accord substantial weight” to DOJ recommendations regarding competitive effects. Parties should take care to ensure all relevant approvals are granted for each transaction.

The Committee on Foreign Investment in the United States (CFIUS) is authorised to review acquisitions of control of US businesses by non-US persons to determine their effect on US national security. While most reviews are initiated voluntarily by transaction parties, CFIUS may initiate the review. CFIUS reviews are more likely to occur where target entities involve defence-related activities, critical infrastructure or critical technologies, or are located near sensitive US governmental facilities. Although rare, the President may block any transaction that would cause a national security threat after CFIUS review.

The FTC and DOJ are tasked with enforcing the federal antitrust laws, and they share authority over merger cases under the Clayton Act and the HSR Act. The FTC also has authority to challenge merger cases under the FTC Act. See 1.1 Merger Control Legislation.

In practice, the Agencies typically allocate merger cases through a clearance process that is based on the particular expertise of each Agency. The FTC tends to investigate energy, healthcare, pharmaceuticals and retail mergers, whereas the DOJ typically investigates mergers relating to financial services, defence, telecommunications and agriculture.

As discussed in 5.1 Authorities' Ability to Prohibit or Interfere with Transactions, to block a proposed merger the Agencies must obtain injunctive relief from a federal district court. The FTC may seek a preliminary injunction if necessary from a federal district court pending the completion of a trial before an administrative law judge. The DOJ must seek a preliminary injunction at the time it initiates litigation if the merging parties do not stipulate or agree not to merge prior to the trial as well as a permanent injunction after a trial before a federal district court, although the preliminary and permanent injunction proceedings are frequently combined.

Certain transactions that require non-antitrust regulatory approvals are exempt from the requirements under the HSR Act. For example, banking transactions often require approval by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System or the Federal Deposit Insurance Corporation, and may be exempt from the HSR Act, provided in certain circumstances that copies of filings with the relevant federal agency are contemporaneously filed with the Agencies.

Merger control requirements are compulsory. If the parties meet the jurisdictional thresholds of the HSR Act, absent an exemption, they must file a Notification and Report Form (HSR Form) with the Agencies, pay a filing fee and observe a 30-day waiting period (15 days in the case of cash tender offers and certain bankruptcy transactions) prior to consummating their transaction.

Parties are subject to a civil penalty of up to USD43,280 per day of non-compliance under the HSR Act. The maximum civil penalty is subject to a cost-of-living adjustment, which is based on the percentage change in the US Department of Labor’s Consumer Price Index for All-Urban Consumers (CPI-U) for the prior year. The adjusted maximum civil penalty is typically announced in January and takes effect immediately. Civil penalties are calculated based on the number of days in violation – from the day a filing should have been made until the day the party makes a corrective filing.

In practice, penalties are rarely levied at the maximum civil penalty amount. The Agencies have had a longstanding "one free bite at the apple" approach pursuant to which they will generally not seek civil penalties for a person’s first violation as long as that person self-reports the violation, makes a corrective filing and details the circumstances demonstrating that the failure to file was inadvertent. Repeat offenders, however, are often fined thousands or millions of dollars per violation, even if the violation was inadvertent or under advice of experienced counsel.

The largest fine ever levied for a failure to make an HSR notification under the HSR Act was USD11 million against affiliates of ValueAct Capital Management LP in 2016 to settle the DOJ’s lawsuit arising from improper reliance on the “solely for the purpose of investment” exemption under the HSR Act.

The HSR Act covers all types of transactions involving the acquisition of voting securities, assets or non-corporate interests (ie, partnership or membership interests) that meet certain jurisdictional thresholds, across all industry sectors, with limited exceptions (eg, transactions exempt from the federal antitrust laws and subject to approval by a federal agency). "Voting securities" include any securities that, at present or upon conversion, entitle the holder to vote for a director of the issuer. Acquisitions of convertible voting securities (eg, options, warrants, non-voting convertible preferred stock) are generally exempt from the filing requirements because they do not have the present right to vote for directors. A notification could be required, however, prior to the exercise or conversion of such securities. 

Whether a transaction is potentially reportable under the HSR Act depends on whether it results in a transfer of beneficial ownership of voting securities, assets or non-corporate interests from one ultimate parent entity to a different ultimate parent entity (see 2.4 Definition of "Control"). The concept of "beneficial ownership" under the HSR Act differs materially from the US securities law concept, although they do overlap. The HSR Act does not provide a definition of beneficial ownership but its underlying Statement of Basis and Purpose highlights the following relevant factors:

  • the right to obtain the benefit of any increase in value or dividends;
  • the risk of loss of value;
  • the right to vote the stock or to determine who may vote the stock; and
  • investment discretion, including the power to dispose of the stock.

As such, certain restructurings or reorganisations may require a filing under the HSR Act if there is transfer involving different ultimate parent entities. For example, a transaction between a corporation and its majority-owned subsidiary is likely to be exempt as an “intraperson transaction”, whereas a transaction between one private equity fund and another related fund sharing a common manager may be reportable.

With respect to goods and real property, relevant factors include:

  • which party maintains insurance on the goods or property;
  • the right to benefit from any increase in value;
  • the risk of loss of value; and
  • the ability to dispose of the goods or property.

Therefore, a long-term lease that exhausts the useful life of the underlying asset, or a grant of a licence that is exclusive in any field of use, may be reportable as an asset acquisition. 

In contrast to acquisitions of voting securities of a corporation, acquisitions that do not confer control of a non-corporate entity are not reportable under the HSR Act.

The concept of "control" under the HSR Act is a bright line test that differs from the concept of a "group" under other laws, which focus on a broader range of management rights or contractual arrangements. Control of a corporation for HSR purposes means ownership of 50% or more of its outstanding voting securities, or having the present contractual right to designate 50% or more of its board of directors. Control of a non-corporate entity for HSR purposes means having the right to 50% or more of its profits or, upon dissolution, its assets.

The entity/individual at the top of the ownership structure that is not controlled by any other entity/individual is deemed to be the "ultimate parent entity". The relevant "groups" for HSR Act purposes are the ultimate parent entity of the acquiring party together with all entities it controls directly or indirectly (the "Acquiring Person"), and the ultimate parent entity of the acquired party together with all entities it controls directly or indirectly (the "Acquired Person"). (Certain exemptions, such as the foreign issuer exemption, focus on the acquired entity rather than the Acquired Person as a whole.)

While an acquisition of a non-corporate entity is only reportable if it confers control, minority acquisitions of voting securities – even small percentages – may be reportable if they meet the jurisdictional thresholds, provided that no exemption applies.

Whether a particular transaction is subject to the requirements of the HSR Act depends on the application of three jurisdictional tests:

  • the "size of transaction" test;
  • the "size of person" test; and
  • the commerce test.

Dollar-denominated thresholds in the HSR jurisdictional tests are indexed annually to prior year changes in gross national product (GNP). The FTC typically releases the revised HSR thresholds in January, taking effect 30 days later.

With very few exceptions, all transactions will satisfy the commerce test (as either the Acquiring or Acquired Persons will be engaged in commerce or some activity affecting commerce).

The size of transaction test is met if, as a result of the transaction, the Acquiring Person will hold voting securities, assets or non-corporate interests of the Acquired Person valued in excess of USD94 million. In determining the size of transaction, the value of any voting securities, assets and non-corporate interests of the Acquired Person already held by the Acquiring Person is included. There are other factors to consider in calculating the size of transaction (eg, assumed liabilities, amounts paid for non-voting securities, or third-party debt of the acquired entity) that may differ depending on the transaction structure, such that the calculation of the size of transaction is not as straightforward as it may otherwise seem.

The size of person test is applicable for transactions valued at USD376 million or less and is met if a transaction involves:

  • voting securities or assets of a person engaged in manufacturing with worldwide annual net sales or total worldwide assets of USD18.8 million or more being acquired by any person with total worldwide assets or worldwide annual net sales of USD188 million or more;
  • voting securities or assets of a person not engaged in manufacturing with total assets of USD18.8 million or more being acquired by any person with total worldwide assets or worldwide annual net sales of USD188 million or more; or
  • voting securities or assets of a person with annual net sales or total assets of USD188 million or more being acquired by any person with total worldwide assets or worldwide annual net sales of USD18.8 million or more.

The jurisdictional thresholds for purposes of the size of transaction test are calculated based on the value of the voting securities, assets and non-corporate interests that the Acquiring Person will hold in the Acquired Person as a result of the transaction. Publicly traded voting securities to be acquired are valued based on the greater of the Market Price (the lowest closing quotation during the 45 days prior to closing) or the Acquisition Price (all consideration to be paid, whether in cash or in kind). Non-publicly traded voting securities to be acquired are valued based on the Acquisition Price or the Fair Market Value of the stock if the Acquisition Price is undetermined.

Assets to be acquired are valued based on the Fair Market Value of the assets or, if determined and greater than the Fair Market Value, the Acquisition Price. Non-corporate interests to be acquired are valued based on the Acquisition Price or the Fair Market Value of the non-corporate interests if the Acquisition Price is undetermined.

If a Fair Market Value determination is necessary, it must be made in good faith by the board of directors of the Acquiring Person or its delegee as of any date within 60 calendar days prior to filing (if filing is required) or within 60 days prior to closing (if filing is not required).

The jurisdictional thresholds for the size of person test are calculated on the basis of worldwide sales or assets of the Acquiring and Acquired Persons. Annual net sales are derived from the Acquiring or Acquired Person’s latest consolidated annual income statement; total assets are based on the book value of the assets contained in the Acquiring or Acquired Person’s most recent regularly prepared consolidated balance sheet(s). Where the Acquiring or Acquired Person does not have a regularly prepared annual income statement or balance sheet, such person may need to prepare a pro forma balance sheet listing all assets held at the time of the acquisition (in the case of the Acquiring Person, not including any cash to be used as consideration for the acquisition or for expenses incidental thereto, nor any securities of the same Acquired Person).

Sales or assets booked in a foreign currency should be converted based on the Interbank Exchange Rate. For an annual income statement, the parties should use the average exchange rate for the year reported. For a regularly prepared balance sheet or pro forma balance sheet, the parties should use the exchange rate in effect for the date of the relevant balance sheet.

The jurisdictional thresholds are calculated with respect to the Acquiring and Acquired Persons, which are deemed to include all entities under common control (ie, having the same ultimate parent entity) (see 2.4 Definition of "Control"). If the seller is not included within the Acquired Person (eg, the holder of a small percentage of stock in a widely held corporation selling shares to a third-party buyer in a private sale), its sales and assets do not need to be counted for the size of person test. The sales and assets of the seller would not be relevant but those of the corporation and the Acquiring Person would be.

Changes in the business during the reference period; ie, acquisitions, divestments or business closures, should be reflected by adjusting the financials to include the annual net sales and total assets of all controlled entities at the time of the proposed acquisition.

The HSR Act applies to all acquisitions of voting securities, assets or non-corporate interests that meet the jurisdictional thresholds. However, certain foreign-to-foreign transactions may qualify for an exemption from the HSR Act reporting requirements.

  • Acquisitions of assets located outside the USA are exempt, unless the assets generated aggregate sales in or into the USA exceeding USD94 million in the most recent fiscal year. However, if both Acquiring and Acquired Persons are foreign under the HSR rules, the transaction is exempt if valued at USD376 million or less and the aggregate sales of the Acquiring and Acquired Persons in or into the USA are less than USD206.8 million and the aggregate total assets of the Acquiring and Acquired Persons located in the USA are less than USD206.8 million. 
  • Acquisitions of voting securities of a foreign corporate issuer by a US Acquiring Person are exempt unless the issuer holds assets located in the USA having a Fair Market Value of over USD94 million or made sales in or into the USA of over USD94 million, in the aggregate with its controlled entities, in the most recent fiscal year.
  • Acquisitions of voting securities of a foreign corporate issuer by a foreign Acquiring Person are exempt unless the acquisition will confer control of the issuer and the issuer holds US-based assets with a Fair Market Value over USD94 million, or made sales in or into the USA, on an aggregate basis with its controlled entities, of over USD94 million in the most recent fiscal year. The transaction is exempt if it is valued at USD376 million or less, the aggregate sales of the Acquiring and Acquired Persons in or into the USA are less than USD206.8 million, and the aggregate total assets of the Acquiring and Acquired Persons located in the USA are valued at less than USD206.8 million.
  • Acquisitions by or from foreign governmental entities are exempt if the ultimate parent entity of either the Acquiring or Acquired Person is controlled by a foreign state, foreign government, or agency thereof, and the acquisition is of assets located within the foreign state or of voting securities or non-corporate interests of an entity organised under the laws of that jurisdiction.

The HSR Act does not use a market share test, although market share information may become relevant if the Agencies initiate a substantive antitrust inquiry into the transaction.

Joint ventures are subject to specific threshold rules under the HSR Act and may be notifiable, unless an exemption applies.

The formation of joint ventures (JVs) or other corporations is reportable if one or more Acquiring Persons will hold voting securities in the JV valued in excess of USD376 million. A formation is also reportable where one or more Acquiring Persons will hold voting securities in the JV valued in excess of USD94 million, provided that:

  • such Acquiring Person has annual sales or total assets of USD188 million or more, the JV or other corporation will have total assets of USD18.8 million or more, and at least one other Acquiring Person has annual sales or total assets of USD18.8 million or more; or
  • such Acquiring Person has net sales or total assets of USD18.8 million or more, the JV or other corporation will have total assets of USD188 million or more, and at least one other Acquiring Person has annual sales or total assets of USD18.8 million or more.

A formation of an unincorporated JV entity (eg, a partnership or limited liability company) is reportable where one or more Acquiring Persons receive a controlling interest in the JV that is valued in excess of USD376 million. Alternatively, a formation is also reportable where one or more Acquiring Persons will acquire a controlling interest in the JV that is valued in excess of USD94 million, provided that:

  • such Acquiring Person has annual sales or total assets of USD188 million or more, and the newly formed entity has total assets of USD18.8 million or more; or
  • such Acquiring Person has annual sales or total assets of USD18.8 million or more, and the newly formed unincorporated entity has total assets of USD188 million or more.

For the purposes of satisfying the thresholds, contributors to the JV entity are Acquiring Persons, and the JV entity is an Acquired Person.

For the size of person test, corporate JVs require a second Acquiring Person to meet the defined size of person test, whereas non-corporate JVs omit this requirement but mandate that the Acquiring Person must gain control (eg, the right to 50% or more of the profits or assets upon dissolution) of the non-corporate JV.

To the extent a JV will hold certain categories of "exempt" assets, the formation may be exempt if the Fair Market Value of the non-exempt assets does not exceed USD94 million. Some examples of "exempt" assets are cash, securities in other issuers not under common control, investment rental properties rented or held for rent to third parties both before and after the acquisition, and foreign assets that did not generate aggregate sales in or into the USA exceeding USD94 million in the most recent fiscal year. In addition, the assets contributed by each Acquiring Person are considered exempt with respect to such Acquiring Person (but not with respect to any other contributor to the JV).

Even if a transaction does not meet the jurisdictional thresholds of the HSR Act, it is still subject to other antitrust laws. The Agencies may choose to review a non-reportable transaction, before or after consummation. Given that investigations challenging conduct under the Sherman Act, the Clayton Act or the FTC Act do not have a statute of limitations, the potential for Agency scrutiny is indefinite. If a consummated merger violates the antitrust laws, the same types of remedies are available as in the case of reportable mergers.

The HSR Act is suspensory and, if a filing is required, parties may not close the transaction until the expiration or termination of the waiting period. Typically, the statutory waiting period is 30 days and begins after both parties submit their corresponding HSR filings, the filings have been deemed complete , and the filing fee has been paid. In the case of open-market purchases, option exercises and certain other (generally, non-negotiated) transactions, the waiting period begins once the Acquiring Person makes the filing and serves notice on the Acquired Person.

Unless the Agencies take action prior to expiration, the waiting period expires automatically on the 30th day at 11:59pm Eastern Standard Time (EST) and the parties are able to consummate their transaction. In cash tender offers and certain bankruptcy transactions, the waiting period is shortened to 15 days. The waiting period extends to the next business day when a waiting period expires over a weekend or on a legal public holiday.

Parties that close a transaction prior to the expiration or termination of the waiting period are subject to a civil penalty of up to USD43,280 per day of non-compliance.

In addition, parties that engage in "gun-jumping" activities, including the transfer of beneficial ownership of the acquired company prior to expiration or termination of the waiting period, are also subject to civil penalties of up to USD43,280 per day of non-compliance. Penalties are made public.

There are no exceptions to the suspensory requirement of the HSR Act. Although some transactions have shorter waiting periods, such as cash tender offers and certain bankruptcy transactions, parties to all reportable transactions must observe the applicable waiting period prior to consummation. The Agencies may grant early termination of the waiting period (see 3.11 Accelerated Procedure).

The Agencies will not permit closing before expiration or early termination (see 3.11 Accelerated Procedure) of the applicable waiting period, nor allow carve-outs, ring fencing or hold separate agreements. Premature closing may subject the parties to civil penalties of up to USD43,280 per day of non-compliance.

There are no specific deadlines for making HSR filings. Other than tender offers, certain bankruptcy transactions, open-market purchases and similar non-negotiated transactions, a filing cannot be made under the HSR Act prior to the execution of a transaction agreement between the parties, which must be signed but need not be binding or otherwise formalistic.

The parties must close the transaction within one year after the expiration or early termination of the waiting period in order to avoid a second filing for the same transaction. Where less than a controlling interest is being acquired in a corporation, the Acquiring Person will have one year to cross the notification threshold (based on the size-of-transaction) selected in the HSR Form. Once crossed, subsequent acquisitions of voting securities from the same Acquired Person by such Acquiring Person will be exempt for a period of five years, provided that the Acquiring Person does not cross a higher notification threshold. The notification thresholds are:

  • USD94 million;
  • USD188 million;
  • USD940 million;
  • 25% of the outstanding voting securities of an issuer if valued at greater than USD1,880.2 million; or
  • 50% of the outstanding voting securities of an issuer if valued at greater than USD94 million.

There are no specific statutory timing requirements for when a notification must be made after the execution of a transaction agreement, other than that the applicable waiting period must expire or be terminated prior to consummation.

Generally speaking, a signed agreement must be submitted with each HSR filing, with the exception of certain types of transactions, such as open-market purchases or select bankruptcy cases. There is no obligation that the agreement is formal or binding. Filings may be made on a basic letter of intent or similar document that identifies the parties and the general nature of the transaction.

Filing fees range from USD45,000 to USD280,000 and must be paid on or prior to the date of filing, or the filing will be deemed incomplete and the waiting period will not begin to run until the fee is paid. Although both the Acquiring and Acquired Persons submit separate filings, only one fee is paid for each reportable acquisition, which is the obligation of the Acquiring Person unless the parties have agreed otherwise. The filing fee amount is based on the size of transaction listed on the HSR Form.

The filing fee for transactions valued at greater than US94 million but less than USD188 million is USD45,000. For transactions valued at USD188 million or greater but less than USD940.1 million, the filing fee is USD125,000. For transactions valued at USD940.1 million or greater, the filing fee is USD280,000.

Under the HSR Act, both the Acquiring and the Acquired Persons must submit separate HSR filings made on behalf of their respective ultimate parent entities. See 2.4 Definition of "Control".

The elements of a filing under the HSR Act are relatively straightforward and consist of:

  • the completed HSR Forms;
  • the attachments to the HSR Form, including copies of financial statements; and the 4(c) and 4(d) documents (documents prepared by or for directors or officers for the purpose of evaluating or analysing the transaction) with respect to competition, competitors, markets, market shares, potential for sales growth or expansion into product or geographic markets, synergies or efficiencies); and
  • the filing fee.

In addition to describing the structure of the transaction and the relationship of parties, the HSR Form requires the parties to list US revenues for the most recent completed year by North American Industry Classification System codes (NAICS Codes) and, for manufactured products, by North American Product Classification System codes (NAPCS Codes). Parties must disclose information about their controlled entities, significant shareholders and minority shareholdings. Additional disclosures need to be made with regard to overlapping lines of business.

An Acquiring Person needs to respond on behalf of itself and all controlled entities. In the case of a private equity fund or holding company that controls a number of operating companies, the required disclosures can be lengthy and include detailed information regarding other companies that have no relation to the reportable transaction. By contrast, an Acquired Person’s filing is largely limited to disclosures concerning the entities or assets being sold.

Unlike antitrust or merger control filings in other jurisdictions, there is no narrative required to discuss the impact on the market, changes to competition, or competitors of the relevant parties. Instead, the Agencies use the 4(c) and 4(d) documents to obtain a view of the competitive impact of the transaction through the eyes of the parties. The FTC’s Premerger Notification Office takes a broad view of the type of documents that meet the 4(c) and 4(d) criteria and they need not be translated into English.

The HSR Form and accompanying affidavit must be signed by an authorised signatory of the Acquiring or Acquired Person, attesting to the completeness and accuracy of the information provided and to the good faith intention to consummate the transaction. In lieu of notarisation, the signatory may swear under the penalty of perjury.

A "substantial compliance" standard applies to necessary disclosures under the HSR Act. If the HSR filing is incomplete, the waiting period will not begin until the requisite information is provided. As long as the waiting period is observed and steps are taken to cure any filing deficiencies, no fines are levied. Upon the filings of all parties being deemed complete, the Agencies will issue written confirmation setting forth the start and end dates of the initial waiting period.

Acquiring or Acquired Persons (and their respective officers, directors or partners) that consummate a reportable transaction prior to the end of the waiting period, or based on an incomplete or inaccurate HSR Form, are subject to potential civil penalties. See 2.13 Penalties for the Implementation of a Transaction before Clearance.

An individual who knowingly signs an HSR Form on behalf of the Acquiring or Acquired Person that is not complete and accurate may be subject to criminal punishment for committing an act of perjury. 

An HSR filing that contains inaccurate or misleading information may not satisfy the substantial compliance standard, and the waiting period will not begin until the filing is in substantial compliance.

See 2.13 Penalties for the Implementation of a Transaction Before Clearance for civil penalties and 3.6 Penalties/Consequences of Incomplete Notification for further information.

See 3.1 Deadlines for Notification and 3.9 Pre-notification Discussions with Authorities.

The "initial waiting period" is 30 calendar days (15 days in the case of cash tender offers and certain bankruptcy transactions), which commences when the FTC’s Premerger Notification Office determines that the HSR filings are complete and the filing fee has been received. Under the HSR Act, if the initial waiting period expires without either Agency taking any action, the process ends and the transaction may be consummated. If the transaction does not involve a substantive overlap or competitive issue, the timeline for clearance is typically 30 (or 15) calendar days after submission, subject to the grant of early termination, see 3.11 Accelerated Procedure.

During the initial waiting period, either of the Agencies may open a preliminary investigation of the proposed transaction and decide if further information is required. Under the HSR rules, parties to a transaction can extend the initial waiting period by withdrawing the filing and refiling within two business days to avoid paying an additional filing fee. This "pull-and-refile" process provides the reviewing Agency staff and the parties with a second initial waiting period to address competitive issues that remain unresolved and potentially avoid a second request, as described below.

Prior to the end of the initial waiting period, if the reviewing Agency chooses to formally request additional documents and information – a "second request" – the waiting period is suspended while the parties respond to and certify substantial compliance with their second requests, which, being burdensome, may add months to the review timeline. Once each party has substantially complied with its second request, the waiting period resumes and extends by statute for an additional 30 calendar days. Parties to the transaction may enter into timing agreements with Agency staff that typically add 30 to 60 days to the review process after the statutory waiting period expires.

According to the Dechert Antitrust Merger Investigation Timing Tracker (DAMITT), significant merger investigations resolved during the 12 months ending Q1 2020 lasted an average of 11.4 months. This average covers 33 merger investigations of proposed HSR reportable transactions concluded by the Agencies during this 12-month time period that resulted in either a closing statement, consent order, complaint challenging a transaction, or transaction abandonment for which the Agency issued a press release.

Pre-notification discussions with the antitrust Agencies are not required. In transactions with substantive overlap or potential competitive issues, counsel to the parties may engage the Agencies in pre-notification discussions to discuss the merits of the transaction and provide the Agencies additional time to review the transaction with the goal of avoiding the issuance of a second request. Information provided to the Agencies is treated as confidential information. 

During fiscal year 2019 (1 October 2018 to 30 September 2019), the Agencies opened preliminary investigations to further review 237 of 2,030 adjusted HSR reportable transactions (11.7%) during the initial waiting period (see 3.8 Review Process). For transactions subject to a preliminary investigation during the initial waiting period, the Agency staff typically issue a "voluntary request letter" (also called a "voluntary access letter") seeking information that is not requested in the HSR filing, such as strategic and market plans, information on overlapping products, market share information, top customer contact information, customer win/loss data, competitors and suppliers and other relevant information.

The DOJ issued a revised Model Voluntary Request Letter in November 2018. The FTC’s August 2015 Best Practices for Merger Investigations contains a list of requests typically included in a voluntary access letter. The voluntary requests vary in the burden they impose; many can be responded to within a few days, especially if the parties prepare in advance. This information focuses on competitive issues and helps resolve questions about the proposed transaction. Although voluntary, parties are urged to provide responses as quickly as possible.

Of the 237 HSR reportable transactions during fiscal year 2019 subject to further review during the initial waiting period, the Agencies collectively issued 61 second requests (compared to 45 during fiscal year 2018), representing 3.0% of the 2,030 adjusted HSR filing transactions (compared to 2.2% of the 2,028 in fiscal year 2018). Responses to second requests, which consist of a combination of requests for documents and data as well as detailed interrogatories, are extraordinarily burdensome and costly. A typical second request response includes millions of pages of documents and may take several months for the parties to comply. See 3.8 Review Process for the duration of significant merger matters that receive second requests. 

The DOJ issued its most recent Model Second Request in May 2020. The FTC issued its most recent Model Second Request in April 2019. Virtually all parties that receive second requests enter into a timing agreement establishing protocols for compliance with a second request, milestone dates for events leading up to substantial compliance, and extensions of time for the Agency to make an enforcement decision after waiting period expiration. The DOJ issued its most recent Model Timing Agreement in November 2018, which the DOJ temporarily revised in March 2020 in response to the COVID-19 pandemic, extending the post-compliance period to 90 days and recognising that it may be appropriate to revise agreements (and amend, shorten, extend, or cancel them) in response to COVID-19 developments. The FTC issued its most recent Model Timing Agreement in February 2019 and, like the DOJ, in March 2020 announced that it is considering "appropriate modifications of statutory or agreed-to timing” in response to COVID-19. See 3.8 Review Process.

There is no short-form procedure for review. All transactions are subject to the same requirements with respect to the required elements of an HSR Form. However, there is a procedure for an accelerated review known as "early termination". For no additional fee or justification for the request, parties can request that the Agencies terminate the waiting period prior to its expiration.

Although a request for this early termination is subject to Agency discretion, it is often granted two to three weeks into the standard 30-day waiting period if the proposed transaction does not raise significant competitive issues. Early termination is infrequent for transactions that qualify for the shorter 15-day waiting period.

During fiscal year 2019 (1 October 2018 to 30 September 2019), 74.2% of the 2,030 adjusted HSR reportable transactions included a request for early termination. Of those, 73.5% were granted, totaling 54.5% of all transactions.

If early termination is granted, the names of the parties to the transaction are published in the Federal Register and posted on the FTC’s website.

Section 7 of the Clayton Act prohibits the acquisition of stock or assets “where in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly”. The key question the Agencies ask is whether the proposed (or consummated) merger is likely to create or enhance market power, or facilitate its exercise.

See 1.1 Merger Control Legislation.

Relevant product and geographic markets in which to assess where the potential adverse competitive effects may occur are typically narrowly defined. To determine the relevant product market under the 2010 Horizontal Merger Guidelines, the Agencies identify a product or group of products such that a hypothetical profit-maximising firm that was the only present and future seller of those products likely would impose at least a small but significant and non-transitory increase in price (SSNIP) on at least one product sold in the market by at least one of the merging firms. The Agencies may also define a product market based on a targeted subset of customers to whom a hypothetical monopolist likely would profitably impose a SSNIP. The Agencies typically use a SSNIP of 5% of the price paid by consumers, but the SSNIP test is not a tolerance test for price increases that may result from a merger. Any price increase that may result from a merger is generally considered unlawful.

The Agencies identify the relevant geographic market by applying the same techniques used to define a relevant product market. The relevant geographic market is the area where a hypothetical profit-maximising firm that was the only present and future producer of the relevant product(s) located in the region would impose at least a SSNIP from at least one of the merging parties’ locations in the market. The Agencies may also define a relevant geographic market based on the location of targeted customers if a hypothetical monopolist could discriminate based on the customer’s location.

The Agencies also analyse ease of entry into the relevant market since a merger is unlikely to enhance market power if entry is so easy that the merged firm could not profitably raise prices or reduce competition. Entry is considered easy if it would be timely, likely, and sufficient in its magnitude, character and scope to deter and counteract the adverse competitive effects at issue. Timeliness is generally defined as entry that is “rapid enough” to make actions causing the adverse effects unprofitable. Entry is considered likely if it would be profitable. Sufficiency is new entry by one or more firms that will replicate the scale and strength of the merging firms.

In addition to analysing relevant markets and ease of entry, the Agencies analyse competitive effects, which is discussed in 4.4 Competition Concerns, and potential economic efficiencies, which is discussed in 4.5 Economic Efficiencies.

The Agencies also review vertical mergers and seek enforcement where appropriate. As mentioned in 1.1 Merger Control Legislation, the Agencies issued new Vertical Merger Guidelines on 30 June 2020, which outline the current “principal analytical techniques, practices and enforcement policy” concerning strictly vertical mergers, “diagonal mergers”, and mergers of complements.

Although the Agencies seek to build strong bilateral relations with foreign competition authorities and to co-operate on individual merger investigations (see 7.4 Co-operation with Other Jurisdictions), the Agencies do not rely on case law from other jurisdictions in making enforcement decisions.

The Agencies typically investigate mergers on theories involving unilateral effects, co-ordinated effects, the elimination of potential competition, foreclosure and raising rivals' costs. Both monopoly power and monopsony power concerns may be the subject of investigation. Horizontal and vertical effects are considered. In the absence of the merged firm potentially raising prices, restricting output, decreasing innovation, or otherwise exercising market power, the Agencies do not typically consider conglomerate or portfolio effects.

The Agencies will consider efficiency claims asserted by the merging parties, although the burden on the merging parties for successfully asserting efficiencies is substantial. The Agencies will only recognise verifiable efficiency claims that are merger-specific, cognisable and likely to reverse the proposed merger’s likely harm to consumers. 

Merger-specific efficiencies are efficiencies that can only be accomplished with the proposed merger and are unlikely to be accomplished by another means. As stated in the 2010 Horizontal Merger Guidelines, the parties must substantiate their efficiency claims so that “the Agencies can verify by reasonable means the likelihood and magnitude of each asserted efficiency, how and when they would be achieved (and any costs of doing so), how each would enhance the merged firm’s ability and incentive to compete, and why each would be merger-specific”. The Agencies will not consider efficiency claims that are “vague, speculative, or otherwise cannot be verified by reasonable means”.

Cognisable efficiencies are verified merger-specific efficiencies that are not derived from anti-competitive reductions in output or service. The Agencies “will not challenge a merger if cognizable efficiencies are of a character and magnitude such that the merger is not likely to be to anticompetitive in any relevant market”. To make this determination, the Agencies “consider whether the cognizable efficiencies likely would be sufficient to reverse the merger’s potential to harm customers in the relevant market” by preventing price increases in the relevant market.

The Agencies utilise a sliding scale analysis in comparing the magnitude of cognisable efficiencies against the magnitude of likely harm to competition absent the efficiencies – the “greater the potential adverse competitive effect, the greater must be the cognizable efficiencies, and the more they must be passed on to the consumer for the Agencies to conclude that the merger will not have an anticompetitive effect in the relevant market”. When the potential adverse effect is likely to be particularly substantial, “extraordinarily great cognizable efficiencies would be necessary to prevent the merger from being anticompetitive”. The Agencies state in their 2010 Horizontal Merger Guidelines that efficiencies almost never justify a merger to monopoly or near-monopoly.

The Agencies specifically recognise the elimination of double marginalisation as an efficiency that is applicable to vertical mergers in the new 2020 Vertical Merger Guidelines.

In general, the Agencies limit their review to the substantive antitrust merits of a transaction. On occasion, the Agencies may co-ordinate their review with other regulatory agencies reviewing the same proposed transaction. However, the Agencies’ review does not account for non-competition issues.

Over the last three years there has been a growing interest in "Hipster Antitrust", which seeks to reject the long-held consumer welfare paradigm in favour of a broader public interest standard requiring the Agencies and courts to consider social and political concerns in merger analysis such as job loss, lower wages and the impact on small businesses. Senior Agency officials have recently noted potential concern with harm to workers resulting from mergers creating monopsony power in labour markets, but, at time of writing, the Agencies have not specifically adopted elements from the Hipster Antitrust movement in their decision-making and are continuing to follow the consumer welfare paradigm.

JVs are typically evaluated using the same criteria as applied to mergers (see 4.1 Substantive Test).

JVs may be pro-competitive in that they allow participants to realise a number of otherwise unattainable market efficiencies through economies of scale or combining research and marketing activities. However, JVs may also be anti-competitive if they reduce the JV parties’ incentives to compete against one another, or if their independent decision-making is limited outside of the JV because of combined control or combined financial interests in production, assets, or other business operations. The lawfulness of a JV may also be evaluated under Sections 1 and 2 of the Sherman Act and under Section 5 of the FTC Act using rule of reason analysis.

The Agencies have extensive statutory powers that enable them to initiate enforcement actions, but they do not have the power to prohibit a proposed potentially anti-competitive merger after the expiration of the HSR waiting period. Only the courts may issue an order to block a proposed transaction. The judicial processes that each Agency may pursue to seek such an order differ.

Section 15 of the Clayton Act enables the DOJ to file, in federal district court, a complaint and motions for a preliminary injunction (if necessary) and, ultimately, a permanent injunction to block a proposed transaction that may violate Section 7 of the Clayton Act. DOJ merger challenges are decided in bench trials before federal district court judges. The DOJ has the burden to demonstrate with a reasonable probability of success (ie, greater than "mere possibility" and less than "certainties") that the merger may substantially lessen competition. The losing party may appeal to the appropriate federal court of appeals. The DOJ can also seek judicial action to unwind a consummated merger.

Unlike the DOJ, which can seek a permanent injunction to block a merger after a bench trial, the FTC only possesses the power to seek preliminary injunctive relief in a federal district court to block a proposed merger pending the completion of an administrative trial. To obtain preliminary injunctive relief, Section 13(b)(2) of the FTC Act requires the FTC to make “a proper showing that, weighing the equities and considering the Commission’s likelihood of ultimate success, such action would be in the public interest”. 

In parallel with a request for preliminary injunctive relief, the FTC issues a complaint for an administrative trial alleging that the proposed merger may violate Section 5 of the FTC Act and Section 7 of the Clayton Act. The FTC also has the authority to pursue an administrative trial even if it is not successful in obtaining a preliminary injunction; however, in April 1995, the FTC issued a formal policy statement in which it said it would only pursue administrative litigation following the denial of a preliminary injunction in rare cases. Since that time, the FTC has not continued with an administrative trial after failing to obtain a preliminary injunction or a reversal of a decision denying a preliminary injunction by an appellate court. The FTC can also seek to unwind a consummated merger through the administrative trial process when there is no opportunity to obtain a preliminary injunction. 

The FTC’s administrative complaint is litigated in a trial before an administrative law judge (ALJ), an FTC employee appointed by the Office of Personnel Management with partially protected tenure and status. The ALJ’s initial decision and order may be appealed to the full Commission, whose decision may then be reviewed in the federal courts of appeal.

Negotiations between the merging parties and the Agencies regarding remedies may take place at any stage in the review process and may be initiated by the merging parties, but it is unlikely that the Agencies will negotiate until after they have investigated the merits of a transaction. Remedies negotiations typically commence after the Agency staff express concerns. See 5.4 Typical Remedies and 9.3 Current Competition Concerns.

In September 2018, the DOJ withdrew the 2011 Policy Guide to Merger Remedies. The 2004 Policy Guide to Merger Remedies will be in effect until an updated policy is released. The 2004 Policy Guide to Merger Remedies states: “The Division will insist upon relief sufficient to restore competitive conditions the merger would remove. Restoring competition is the ‘key to the whole question of an antitrust remedy,’ and restoring competition is the only appropriate goal with respect to crafting merger remedies”. Similarly, the FTC’s Bureau of Competition states in its Frequently Asked Questions About Merger Consent Order Provisions that “[e]very order in a merger case has the same goal: to preserve fully the existing competition in the relevant market or markets”.

Structural remedies consisting of a partial divestiture of an ongoing standalone business unit have been the most common remedies for a horizontal merger that the Agencies have determined would likely have an adverse competitive effect. The FTC Bureau of Competition’s 2012 Negotiating Merger Remedies policy statement says that “the Commission prefers structural relief in the form of a divestiture to remedy the anticompetitive effects of an unlawful horizontal merger”. Similarly, the DOJ’s 2004 Policy Guide to Merger Remedies states that “[s]tructural remedies are preferred to conduct remedies in merger cases because they are relatively clean and certain, and generally avoid costly government entanglement in the market”.

Structural divestitures are likely to include all assets (or licences to those assets) necessary for the divestiture purchaser to be an effective, long-term viable competitor of the merged entity, but have typically not consisted of an entire ongoing standalone business unit. Assistant Attorney General Makan Delrahim and other senior DOJ officials have expressed strong concerns that partial or carve-out divestitures of less than an ongoing standalone business unit are not sufficient, in part due to the relatively high failure rate of partial divestitures reflected in the FTC’s January 2017 Merger Remedies study. The FTC Merger Remedies study found that for the 2006-12 period, approximately 30% of partial divestitures of ongoing standalone business units failed, while divestitures of an entire ongoing standalone business unit had a 100% success rate. Joseph Simons, the Chairman of the FTC, also stated that the 30% failure rate for partial divestitures “is too high and needs to be lowered substantially, or ideally zeroed out altogether”.

The Agencies may seek behavioural or conduct remedies in very limited circumstances for horizontal and vertical mergers. See 9.3 Current Competition Concerns. The FTC’s Bureau of Competition has recently stated that it “disfavors behavioral remedies and will accept them only in rare cases based on special circumstances of an industry or particular transaction”.

The Agencies generally define what these conduct or behavioural remedies might be – firewall provisions, non-discrimination provisions, mandatory licensing provisions, transparency provisions, anti-retaliation provisions, prohibitions on certain contracting practices and long-term supply contracts – but, as the DOJ notes in its 2004 Policy Guide to Merger Remedies, “other conduct remedies are also possible”. The FTC Bureau of Competition’s 2012 Negotiating Merger Remedies policy statement similarly says that conduct relief may be required to remedy the anti-competitive effects of a vertical merger and that the conduct relief may include a requirement to erect firewalls to protect confidential information or a requirement not to favour certain entities.

In rare cases, the Agencies have also pursued disgorgement of ill-gotten gains in consummated mergers as a remedy. In July 2012, the FTC issued its current position on disgorgement as a remedy in its Statement of the Commission Regarding Withdrawal of the Commission’s [2003] Policy Statement on Monetary Equitable Remedies in Competition Cases.

As discussed in 4.6 Non-competition Issues, the Agencies only focus their remedy on competition-related issues.

The Agencies have different procedures for accepting and finalising consent agreements. 

FTC

The FTC staff negotiate a proposed consent agreement that is incorporated into an Agreement Containing Consent Order (ACCO). The ACCO is signed by the staff and the merging parties, then submitted to the Director of the Bureau of Competition for approval based on a staff recommendation. Upon approval by the Director of the Bureau of Competition, the ACCO, staff recommendation and related materials are submitted to the Commission for a vote to accept or reject the proposed consent agreement.

If a majority of the commissioners voting find “reason to believe” that the proposed transaction is unlawful and that the ACCO will accomplish the remedial goals, the FTC will accept the proposed consent agreement for a 30-day public comment period and issue a Complaint, provisional Decision and Order, and Analysis of Proposed Consent Order to Aid Public Comment. The FTC’s acceptance of an ACCO and provisional Decision and Order for public comment typically enables the parties to close their transaction. The staff will respond to all comments. Following the public comment period, the FTC can accept the Decision and Order as final, reject it or revise it.

DOJ

The DOJ staff negotiate a consent agreement with the parties to a transaction in the form of a Proposed Final Judgment that is submitted for approval to the Assistant Attorney General in charge of the Antitrust Division based on the recommendation of the staff. The Antitrust Procedures and Penalty Act of 1974, as amended in 2004, commonly called the Tunney Act, requires the DOJ to submit its consent agreement in the form of a Proposed Final Judgment and a Competitive Impact Statement to a federal district court to determine if the consent agreement is “in the public interest.” Following a 60-day public comment period, the DOJ must file a response to the public comments and may then request that the judge enter the Proposed Final Judgment.

In determining whether the consent agreement is in the public interest, the judge must consider, among other things, (i) the provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations upon the adequacy of the judgment, and (ii) the impact of the consent agreement upon competition in the relevant market or markets, the public generally and any individuals alleging specific injury from the violations alleged in the complaint.

The Tunney Act does not prohibit the merging parties from closing their transaction before this judicial review process is complete. In September 2019, after the first-ever Tunney Act hearing with live witnesses, a federal district court judge entered a final order for the settlement the DOJ reached with CVS Health Corporation and Aetna, Inc., which required CVS Health Corporation to divest Aetna’s Medicare Part D prescription drug plan to WellCare Health Plans, Inc.

In cases involving negotiated settlements, typically, the parties may close the merger upon entry of the consent agreement for public comment. Such remedies must be completed within a time period specified in the consent agreement, after the closing of the transaction. Where the Agencies require a contractually bound upfront buyer for the divested assets, which occurs in most consent agreements, the parties to the transaction must obtain prior approval of the upfront buyer and the purchase agreement before the Agencies will approve the consent agreement. The upfront buyer, however, is not always required to close its acquisition of the divested assets at the same time that the parties close their transaction as long as it is contractually obligated to complete the acquisition within the agreed-upon specified period in the consent agreement.

The Agencies monitor and enforce compliance with negotiated remedies. Parties to consent agreements may have a trustee appointed by the Agencies to monitor compliance and ensure the effectiveness of the remedy. In cases of divestiture remedies, the Agencies may also appoint a divestiture trustee to ensure that an agreed-upon divestiture or a "crown jewel" package of assets is completed if the parties fail to complete the required divestiture in the agreed-upon time period.

At the FTC, the Compliance Division in the Bureau of Competition oversees enforcement of merger remedies. Failure to comply with a remedial agreement is a violation of Section 5(l) of the FTC Act and may result in civil penalties of up to USD43,280 per day for non-compliance as well as injunctive and other equitable relief.

On 19 April 2018, Assistant Attorney General Makan Delrahim announced the new Office of Decree Enforcement in the Antitrust Division of the Department of Justice with the sole goal to ensure compliance with, and enforcement of, consent decrees. The DOJ may seek a contempt order, including a monetary fine, from the appropriate federal district court if the parties to the Final Judgment fail to comply with the terms. Prior to the autumn of 2017, the DOJ needed to show “clear and convincing” evidence to seek a contempt order for a violation of a Final Judgment. Beginning in the autumn of 2017, the DOJ began requiring parties to agree to a lower “preponderance of the evidence” standard for seeking a contempt order for a violation of a Final Judgment.

The Agencies do not issue decisions affirmatively approving or permitting proposed mergers. Instead, the parties to a proposed HSR reportable merger can only consummate their transaction if the HSR waiting period has either expired or been terminated early.

All notices of early termination of the HSR waiting period are published in the Federal Register and posted on the FTC website. There are no public announcements for other transactions where the Agencies allow the waiting period to expire.

An FTC decision to seek a preliminary injunction and to commence administrative litigation to block a proposed merger or to accept a consent order reflecting negotiated remedies requires a majority of the commissioners voting on the matter after considering a recommendation by staff and management. The same procedure applies to challenges to consummated mergers. The Director of the Bureau of Competition or another official in the Bureau of Competition will notify counsel for the parties shortly after the commissioners have made their decision. A press release, non-confidential version of the complaint and, if applicable, the draft consent order and an analysis to aid public comment are made public.

The Assistant Attorney General in charge of the Antitrust Division makes the final decision for the DOJ to seek injunctive relief in a federal district court to block a proposed merger (or unwind a consummated merger) or to accept a consent order reflecting negotiated remedies after reviewing a recommendation by staff and management. A senior DOJ official will notify the parties either shortly before or after the complaint has been filed in a federal district court. A press release, non-confidential version of the complaint and, if applicable, the draft consent order and a competitive impact statement are made public.

Although the Agencies historically only issued press releases announcing adverse determinations, including when a complaint had been filed in court, both Agencies sometimes issue press releases or make public statements when closing out significant matters. For example, in March 2018 the FTC issued a formal statement regarding its decision to close the investigation of the proposed merger of European eyewear makers Essilor and Luxottica Group. Similarly, in June 2019 Assistant Attorney General Makan Delrahim issued a statement regarding the closing of the DOJ’s investigation of Louisiana Health Service & Indemnity d/b/a Blue Cross Blue Shield of Louisiana’s acquisition of Vantage Holdings.

See 2.8 Foreign-to-Foreign Transactions.

Some foreign-to-foreign transactions require HSR filings and, over the last three years, the Agencies sought and obtained remedies for several foreign-to-foreign transactions. The DOJ, for example, obtained an enforcement action against France’s Thales SA’s proposed acquisition of the Netherlands' Gemalto NV in February 2019 where the two firms accounted for 66% of GP HSM's secure encryption processing and key management device sales in the USA, and where Thales agreed to divest its General Purpose Hardware Security Module business. Similarly, the FTC obtained an enforcement action against China National Chemical Corporation and Swiss global agricultural company Syngenta AG’s proposed merger in April 2017 where the parties agreed to divest three types of pesticides to settle charges that the proposed merger would cause significant consumer harm in the USA.

Each HSR filing requires the filing party to include the transaction agreement, as well as agreements not to compete and other agreements between the parties. Although parties to a reportable transaction are required to include these, there are no assurances that such ancillary agreements will be reviewed during the HSR waiting period. The Agencies have the authority to challenge these restrictions at a later date, even if they do not challenge the transaction as anti-competitive.

Input from third parties such as competitors, customers, distributors, suppliers and other industry participants is often critical in shaping the review of the Agencies. Information provided by third parties may cause the Agencies to look closely at certain aspects of a transaction, commence an investigation or seek an enforcement action. 

For transactions that are not reportable under the HSR Act but which may be anti-competitive, it is often the input of third parties that brings competitive concerns to the attention of the Agencies. Customer complaints are typically given the most weight, although competitors and other third parties also make their concerns known to the Agencies during the course of a merger review.

Confidential information that the Agencies seek from third parties is protected by various statutory provisions. For FTC matters, the FTC Act contains protections against disclosure of confidential information obtained from third parties. Section 6(f) of the FTC Act prohibits the FTC from disclosing any trade secret or any commercial or financial information obtained from any person, with the exception of providing the information to appropriate federal or state law enforcement agencies where its confidentiality will be maintained and it will be used only for official domestic law enforcement purposes or any foreign law enforcement agency under the same circumstances. Sections 21(b) and 21(f) of the FTC Act protect the confidentiality of information obtained through compulsory process in investigations – including civil investigative demands (CID) and subpoenas, or submitted voluntarily by a party when compulsory process could have been used – from public disclosure, including disclosure under the Freedom of Information Act. The exception to these provisions is that they do not prevent the FTC from using these materials in Commission proceedings, judicial proceedings where the Commission is a party, or disclosing confidential information obtained during an investigation to another federal or state law enforcement agency with appropriate confidentiality protections and any committee or subcommittee of Congress.

For DOJ matters, confidential information obtained from third parties that is submitted in response to a CID under the Antitrust Civil Process Act (ACPA) is protected from public disclosure under the Freedom of Information Act, although such information may be disclosed to a committee or subcommittee of Congress. The DOJ can also use information that it receives in response to a CID before any “court, grand jury or federal administrative agency” and it may use the information in a deposition pursuant to another CID. Similarly, the DOJ can also provide the information to the FTC, although the FTC is subject to the same confidentiality provisions that apply to the DOJ. Third-party confidential information that is submitted voluntarily to the DOJ and not in response to a CID is not protected by the provisions of the ACPA or HSR Act. Parties submitting information under these circumstances typically request and receive a confidentiality letter providing written assurances that the information will be protected from public disclosure or that they will be provided with adequate advance notice.

As discussed in 7.1 Third-Party Rights, the Agencies typically seek input from third parties in investigating proposed transactions. The Agencies generally request telephone interviews with senior officers. The Agencies also may subpoena individuals from third parties for depositions or investigational hearings.

The Agencies also frequently request documents and information from third parties either voluntarily or through CIDs and subpoenas. The information that the Agencies seek from third parties voluntarily or from CIDs and subpoenas includes sales data, business and strategic plans, and documents relating to the proposed transaction under investigation. The Agencies also may seek third party input to ensure the merger remedies will be effective.

All material submitted by the Acquiring and Acquired Persons under the HSR Act is confidential and protected from public disclosure under the Freedom of Information Act, subject only to the information becoming public in the event of a challenge to the transaction by one of the Agencies. The "fact of filing" is also confidential, unless early termination of the waiting period is requested and granted, in which case the names of the parties to the transaction are published in the Federal Register and posted on the FTC’s website. Although materials submitted by the Acquiring and Acquired Persons are exempt from public disclosure under the Freedom of Information Act, such information may be disclosed to a committee or subcommittee of Congress.

Employing both formal and informal agreements, the Agencies co-operate with foreign competition authorities. The USA has bilateral co-operation agreements with 11 jurisdictions: Germany, Australia, the EU, Canada, Brazil, Israel, Japan, Mexico, Chile, Colombia, and Peru. The Agencies have entered a Memorandum of Understanding with:

  • the Russian Federal Antimonopoly Service;
  • the three Chinese antitrust agencies;
  • the Indian competition authorities; and
  • the Korea Fair Trade Commission.

The Agencies are also often called upon to assist emerging or nascent regimes in connection with drafting merger control thresholds, guidelines and regulations.

The Agencies have multilateral arrangements regarding international mergers, including the 2014 Recommendation of the Organisation for Economic Co-operation and Development (OECD) Council Concerning Co-operation on Competition Investigations and Proceedings, which promotes enforcement co-operation, emphasising the importance of informal communications through the sharing of non-confidential information. The Agencies also participate in the International Competition Network (ICN) Merger Working Group (MWG), which updated its recommended practices for reviewing proposed mergers in March 2018. In May 2019, the Agencies were part of 62 participating governmental authorities in establishing a Framework on Competition Agency Procedures (CAP).

In cases involving competition concerns in more than one jurisdiction, the Agencies and their foreign counterparts often exchange information, which may include both publicly available information and "agency confidential" information. This includes information that the Agencies do not routinely disclose publicly but on which no statutory disclosure prohibitions exist. Examples include staff views on market definition, competitive effects and remedies. 

In order to disclose information submitted by the parties, however, an Agency must obtain a waiver of confidentiality. Merging parties often waive confidentiality protections to assist with the facilitation of co-operation, reduce information production burdens and avoid incompatible remedies. In 2013, the Agencies released a joint model waiver of confidentiality designed to streamline the waiver process. In January 2017 the Agencies also revised their Antitrust Guidelines for International Enforcement and Cooperation, which provide guidance relating to investigative tools and co-operation with foreign authorities. 

As discussed in 5.1 Authorities’ Ability to Prohibit or Interfere with Transactions and 5.7 Issuance of Decisions, the Agencies must typically seek a preliminary or permanent injunction in federal district court to prevent the closing of a transaction after the expiration of the HSR waiting period, which may take several months or longer. An appeal of the decision reached by the district court may be made in the federal court of appeals by either the parties or the Agencies. Merging parties may also appeal adverse FTC administrative trial initial decisions by the ALJ to the full Commission, and an adverse decision by the Commission to a federal court of appeals.

Although there are expedited processes available for certain cases, appeals will typically take over ten months from a decision by a federal district court to a decision by a federal court of appeals concerning a proposed merger based on the average length of time for FTC and DOJ merger matters on appeal since 1995 as compiled by Dechert LLP. Using the same Dechert LLP database for consummated mergers, the appellate timeframe is much longer. The average time from a district court decision in a DOJ challenge to a consummated merger to a decision by a federal court of appeals is approximately 23 months. For FTC challenges to consummated mergers, the average time is approximately 27 months.

The FTC has succeeded in appealing the last two denials of a preliminary injunction motion seeking to block a merger. See FTC v Hershey Medical Center/PinnacleHealth System (2016) and FTC v Advocate Health Care/NorthShore (2016). In February 2019, the DOJ was unsuccessful in seeking an appeal of the June 2018 district court decision denying its attempt to block AT&T’s proposed acquisition of Time Warner.

The merging parties have had no recent success appealing their loss to the Agencies in district court. In April 2017 the Court of Appeals for the District of Columbia Circuit affirmed an appeal by Anthem and Cigna of the February 2017 decision from a district court issuing a permanent injunction sought by the DOJ blocking Anthem’s acquisition of Cigna. In June 2019 the Court of Appeals for the Eighth Circuit affirmed an appeal by Sanford Health and Mid Dakota Clinic of the December 2017 decision from a district court issuing a preliminary injunction sought by the FTC and the North Dakota Attorney General blocking Sanford Health’s proposed acquisition of Mid Dakota Clinic.

If the FTC or DOJ clears a merger, adversely affected third parties do not have a right of appeal under the HSR Act. Third parties with standing do, however, have separate rights to bring a private action against the merging parties under the Clayton Act.

As discussed in 2.5 Jurisdictional Thresholds, the jurisdictional thresholds applicable under the HSR Act are adjusted annually. Apart from these annual adjustments, changes to the HSR Act are not common, although changes to the interpretations of the HSR Act and regulations – issued by the Premerger Notification Office of the FTC – are common. 

One significant legislative proposal is the Standard Merger and Acquisition Reviews Through Equal Rules Act of 2018, known as the 'SMARTER Act', which seeks to ensure that the FTC will be subject to the same standard as the DOJ when seeking a preliminary injunction to block a proposed merger. The SMARTER Act also eliminates the ability of the FTC to pursue administrative litigation for proposed mergers after the FTC seeks to obtain a preliminary injunction in federal court. The SMARTER Act (H.R. 5645) was passed by the House of Representatives on 9 May 2018; it did not receive a vote by the Senate in 2018.

In January 2019 Senator Amy Klobuchar re-introduced the Merger Enforcement Improvement Act (S. 306) that would modernise antitrust enforcement by improving the Agencies’ ability to assess the impact of merger settlements, require studies of new issues, adjust merger filing fees and increase funding for the Agencies. At the same time, Senator Klobuchar re-introduced the Consolidation Prevention and Competition Act of 2019 (S. 307) that would strengthen the current legal standard to stop consolidation that may materially lessen competition. In May 2019 Senator Cory Booker re-introduced The Food and Agribusiness Merger Moratorium and Antitrust Review Act of 2019 (S. 1596) that would put an 18-month moratorium on large agribusiness, food and beverage manufacturing, and retail grocery M&A. In April 2020 Senator Elizabeth Warren and Representative Alexandria Ocasio-Cortez announced plans to propose legislation banning large mergers during the COVID-19 pandemic. Representative David Cicilline also proposed similar legislation in April 2020. At the time of writing, the proposed merger moratoriums have not been formally introduced to either the US Senate or House of Representatives.

See 3.6 Penalties/Consequences of Incomplete Notification and 2.13 Penalties for the Implementation of a Transaction Before Clearance. Adjustments are made to the maximum civil penalties annually as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The next annual adjustment is expected in early 2021.

Violating the HSR Act

During the period from 1 July 2018 to 30 June 2020, the FTC and DOJ obtained three enforcement actions against parties for violating the HSR Act, including:

  • In June 2019, the FTC referred a complaint to the DOJ against Canon Inc and Toshiba Corporation for deliberately structuring a transaction to avoid making timely HSR filings. Canon and Toshiba each agreed to pay USD2.5 million in civil penalties.
  • In August 2019, the FTC referred a complaint to the DOJ against three Third Point LLC funds that failed to make required HSR filings relating to the conversion of its shares in Dow Inc. following the merger of Dow Inc. and E.I. du Pont de Nemours & Company into newly formed DowDuPont Inc. Third Point LLC agreed to pay USD609,810 in civil penalties after making corrective filings, the same fine that Mr Dolan paid.

The largest fine imposed to date for failure to make a notification is USD11 million, which was levied in 2016 in connection with the settlement by affiliates of ValueAct Capital Management LP with the DOJ for improper reliance on the "solely for the purpose of investment" exemption.

Enforcement Against Proposed Mergers

The Agencies have continued to seek enforcement matters against proposed mergers. During the period from 1 July 2019 to 30 June 2020 the FTC settled 12 merger matters with consent agreements, two more than the prior 12-month period. There were dissenting votes on four of these consents – Bristol-Myers Squib Company/Celgene Corporation (November 2019), Danaher Corp./General Electric Co. (March 2020), AbbVie Inc./Allergan plc (May 2020), and Eldorado Resorts, Inc./Caesars Entertainment Corporation (June 2020).

During this period, the DOJ settled nine merger matters, three more than the prior 12-month period. The threat of enforcement action has also caused several parties to abandon their proposed transactions, including Cengage Learning Holdings II Inc. and McGraw-Hill Education Inc. in May 2020 after an investigation by the DOJ, Aveanna Healthcare and Maxim Healthcare Services in January 2020 after an investigation by the FTC, and Johnson & Johnson and Takeda Pharmaceutical Company in April 2020 after an investigation by the FTC.

Court Challenges

FTC

The Agencies have recently challenged proposed transactions in court. In August 2019, the FTC sued to block Evonik’s proposed acquisition of PeroxyChem (FTC v RAG-Stiftung). After a two-week trial, in January 2020, the FTC lost its first merger trial in federal court in Washington, DC since 2007 when it attempted to block Whole Foods Market’s acquisition of Wild Oats. The FTC prevailed in obtaining preliminary injunctions in FTC v Wilhelmsen Maritime Services/Drew Marine Group (July 2018) and FTC v Tronox Limited/Cristal (September 2018). The FTC also prevailed in administrative trials against the proposed Tronox Limited/Cristal merger (December 2018 ALJ decision; consent agreement April 2019) and the consummated Otto Bock/FIH Group Holdings merger (May 2019 ALJ decision; Commission decision in November 2019). The FTC also prevailed in a Court of Appeals decision in June 2019 affirming the December 2017 preliminary injunction granted in FTC v Sanford Health/Mid Dakota Clinic. 

Despite its recent loss in the Evonik/PeroxyChem merger litigation, in February 2020 the FTC sued to block the joint venture between Arch Coal and Peabody Energy Corporation, the two largest coal-mining companies in the USA, and in February 2020 to block the merger of Jefferson Health and Albert Einstein Healthcare Network, two of the leading hospitals in the Philadelphia, Pennsylvania area. At the time of writing, both matters are in litigation and the trials have not commenced.

The FTC also recently sued to block several other proposed mergers: Fidelity National Financial Inc.’s proposed acquisition of Stewart Information Services Corp. in September 2019, Illumina Inc.’s proposed acquisition of Pacific Biosciences of California in December 2019, Post Holding, Inc.’s proposed acquisition of TreeHouse Foods, Inc.’s private label cereal business in December 2019, and Edgewell Personal Care Company’s proposed acquisition of Harry’s, Inc. in February 2020. The parties terminated each of these mergers shortly after the lawsuits were filed. The FTC also commenced administrative litigation in January 2020 to terminate non-compete and non-solicitation agreements arising from Axon Enterprises, Inc.’s May 2018 acquisition of VieVu, LLC. This matter was settled in April 2020. The FTC also commenced administrative litigation in April 2020 to unwind Altria Group Inc.’s 35% ownership interest in JUUL Labs, Inc. The administrative litigation is ongoing at the time of writing.

DOJ

The DOJ has also recently sued to block proposed mergers. In August 2019 the DOJ sued to block Sabre’s proposed acquisition of Farelogix. After a two-week merger trial, in April 2020 the federal district court ruled in favour of Sabre and Farelogix, although the UK’s CMA blocked the merger two days later. The DOJ also failed to prevail at trial in US v AT&T/Time Warner (June 2018) and was unsuccessful in its appeal of the district court decision in February 2019.

In June 2019, the DOJ commenced litigation seeking to block Quad/Graphics Inc.’s proposed acquisition of LSC Communications Inc. In July 2019, Quad/Graphics Inc.'s and LSC Communications agreed to terminate their merger due to the "added delay, uncertainty and cost of legal challenges".

In September 2019, the DOJ sued to block Novelis Inc.’s acquisition of Aleris Corp. to preserve competition in aluminum auto body sheet. For the first time, the parties agreed with the DOJ to binding arbitration under the Administrative Dispute Resolution Act of 1996 to resolve the product market issue. In March 2020, the arbitrator agreed with the DOJ regarding the product market issue.

Pursuant to the arbitration agreement, the parties agreed to divest all of Aleris’s aluminum auto body sheet operations in North America and reimburse the DOJ for its fees and expenses relating to the arbitration proceeding.

Both the DOJ and the FTC have the same appointees in place from last year. Makan Delrahim was confirmed as the Assistant Attorney General for the Antitrust Division on 27 September 2017. For the first time since the FTC was founded in 1915, on 26 April 2018 the US Senate confirmed at the same time five presidential nominees to serve as commissioners. Joseph Simons was appointed Chairman and sworn in on 1 May 2018. Noah Phillips, Rohit Chopra and Rebecca Kelly Slaughter were sworn in on 2 May 2018. The fifth confirmed nominee, Christine Wilson, was sworn in on 26 September 2018 after Commissioner Maureen Ohlhausen's term expired.

In terms of merger enforcement trends, as noted in 9.2 Recent Enforcement Record, the Agencies continue seeking to block certain mergers and to settle other merger matters, and at a higher rate than the prior 12-month period. The FTC established a Technology Task Force to monitor technology markets in February 2019 and to improve its ability to investigate technology mergers. The formal announcement of the task force states that its responsibilities include “prospective merger reviews in the technology sector and reviews of consummated technology mergers.” On 1 October 2019, the Technology Task Force was permanently converted into the Technology Enforcement Division in the FTC’s Bureau of Competition. At the time of writing, the Technology Enforcement Division has not obtained an enforcement action for a technology merger. Separately, on 11 February 2020 the FTC announced that it is examining prior acquisitions by Alphabet Inc. (including Google), Amazon.com, Apple Inc., Facebook, Inc., Google Inc., and Microsoft Corp. pursuant to a Section 6(b) of the FTC Act industry study.

Several recent FTC matters demonstrate that the commissioners do not all share the same views on horizontal merger enforcement. In four recent matters with consent agreements – Bristol-Myers Squib Company/Celgene Corporation (November 2019), Danaher Corp./General Electric (March 2020), AbbVie Inc./Allergan plc (May 2020), and Eldorado Resorts, Inc./Caesars Entertainment Corporation (June 2020) – Democratic Commissioners Chopra and Slaughter dissented because they felt the consent agreements were inadequate (Commissioner Slaughter did not participate in the Eldorado Resorts, Inc./Caesars Entertainment Corporation matter). Commissioners Chopra and Slaughter also dissented in April 2020 from the FTC’s decision to dismiss the administrative litigation against the Evonik/PeroxyChem merger after the FTC lost its attempt to block the merger in federal district court.

Similarly, two recent FTC enforcement matters also demonstrate that the commissioners do not all share the same views on vertical merger enforcement. In Staples/Essendant (January 2019) and Fresenius Medical Care/NxStage Medical (February 2019) the FTC commissioners voted 3-2 along party lines to accept consent agreements. In both of these matters, Democratic Commissioners Chopra and Slaughter dissented since they believed the consent agreements did not adequately address vertical issues. In addition, Commissioners Chopra and Slaughter dissented from the Agencies’ Vertical Merger Guidelines issued on 30 June 2020. See 1.1 Merger Control Legislation.

The Agencies today are far less inclined to settle for remedies that they perceive as providing anything less than complete relief and that entail even a relatively slight risk of failure, due in part to several high-profile failed divestitures over the last several years. Under Assistant Attorney General Makan Delrahim, the DOJ is significantly stepping up demands for structural relief consisting of ongoing standalone business units rather than partial carve-out divestitures of select assets. One recent example is the extent of structural divestitures in the May 2018 Bayer/Monsanto settlement. The DOJ is also strongly opposed to behavioural remedies because it believes they are typically less effective than structural relief and require ongoing regulatory review. One example of this new policy is the DOJ’s decision in November 2017 to attempt to block AT&T’s acquisition of Time Warner, a vertical merger that may have been settled as a behavioural remedy in prior administrations in a manner similar to Comcast/NBC Universal, a comparable transaction, in 2011.

Similarly, FTC Chairman Simons has stated that one of his priorities is to improve the effectiveness of merger remedies. See 5.4 Typical Remedies.

FTC Chairman Simons also stated that another one of his priorities for the FTC is to “devote substantial resources to determine whether its merger enforcement has been too lax, and if that’s the case, the agency needs to determine the reason for such failure and to fix it.” Between September 2018 and June 2019, the FTC conducted 14 sessions of Hearings on Competition and Consumer Protection in the 21st Century. Many of the hearings and panels focused on merger enforcement and merger remedies. At the time of writing, the FTC has not issued a report based on the hearings.

As discussed in 3.10 Requests for Information During Review Process, in March 2020, the DOJ, in response to the COVID-19 pandemic, temporarily revised its Model Timing Agreement for second requests by extending the post-compliance period to 90 days and recognising that it may be appropriate to further revise timing agreements (and amend, shorten, extend, or cancel them). Similarly, in March 2020 the FTC’s Director of the Bureau of Competition stated that the FTC is considering "appropriate modifications of statutory or agreed-to timing” in response to COVID-19.

Despite the COVID-19 pandemic, both Agencies continued to pursue and obtain many significant merger enforcement actions. Between mid-March when Agency staff began teleworking and 30 June 2020, the FTC sued to unwind Altria’s USD12.8 billion purchase of a 35% ownership interest in JUUL Labs, obtained five consent agreements (Danaher Corp./General Electric, Össur HF/College Park Industries, Abbvie/Allergan, Tri Star Energy/Hollingsworth Oil, and Eldorado Resorts/Caesars Entertainment Corporation), and the parties to a proposed merger terminated their deal after FTC staff recommended that the Commission block it (Johnson & Johnson/TachoSil). During this same time, the DOJ has obtained three consent agreements (UTC/Ratheon, Dairy Farmers of America/Dean Foods, and Power Industries/General Dynamics) while the parties to another merger terminated their deal in response to antitrust concerns (Cengate Learning/McGraw-Hill). The Agencies also finalized and issued new Vertical Merger Guidelines.

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Baker Botts, LLP has over 70 lawyers based in Washington, DC, Brussels, London, San Francisco, Houston and New York. Baker Botts’ antitrust team has the sophistication and bench strength to take on our clients’ most significant challenges. Our team of skilled competition lawyers are dedicated exclusively to the area of antitrust and competition law in the US and worldwide, bringing sound commercial judgment to our clients’ most challenging competition matters, along with acute understanding of the varied legal, technical and policy issues faced. Clients range from Global 1,000 companies to innovative start-ups, across diverse industry groups. The firm advises on the full spectrum of antitrust matters, including clearance for mergers and acquisitions, complex litigation and class actions, international cartel investigations, proceedings by European and other international enforcement agencies, and antitrust counselling and compliance.

Overview

Over the past year, US antitrust officials attempted to keep pace with rapidly evolving technology, novel academic theories, and a global pandemic while enforcing federal merger control laws that predate many structures common to today’s transactions. The Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) continued a trend of active enforcement in areas such as vertical mergers and labour markets, while signalling an intent to become more active in spaces that are currently, and mostly, relegated to academic discussion rather than enforcement policy. This includes the ongoing debate over the potential anticompetitive effects of concentration of shareholdings in the hands of large institutional investors and the question of how to analyse and regulate “killer acquisitions.”

States also continued a trend of active merger oversight and enforcement.

Vertical Merger Guidelines

January 2020 saw the release of the FTC and DOJ’s long-awaited draft Vertical Merger Guidelines (“Guidelines”). Although the draft Guidelines do not represent any major departure in the agencies’ analysis of vertical mergers, they are representative of the increased focus and attention the agencies have given to investigating competitive effects of vertical mergers in recent years, as seen in matters such as the AT&T/Time Warner, United Health Group/DaVita Medical Group, and Staples/Essendant transactions. Vertical merger enforcement continues to be highly-politicised, with members of Congress sending a letter to the DOJ and FTC in March requesting the Guidelines be strengthened.

While the draft Guidelines raise no new or surprising approaches to analysing vertical mergers, they do indicate that such transactions are increasingly unlikely to escape the sorts of in-depth investigations that horizontal mergers routinely face.

State-Level Antitrust Enforcement

Over the last few years, state Attorneys General have brought merger challenges, independent of federal antitrust enforcers, such as the failed 2019 challenge to the merger of T-Mobile and Sprint by nine states and the District of Columbia, and the 2017 challenge to Valero’s proposed acquisition of a Plains All American terminal in San Francisco. Involvement by state governments in merger enforcement continues to increase in significance, and states are changing their laws to further empower their Attorneys General to exercise more oversight and control over mergers within their borders. For example, a new Washington state law, effective 1 January 2020, has implemented expanded healthcare merger notification rules, which require even relatively small mergers or affiliations to be notified to the state Attorney General before closing.

Colorado also changed its antitrust laws to empower its Attorney General to challenge the consummation of mergers the state deems anticompetitive. These laws are in addition to the actions state Attorneys General have already been taking to monitor, investigate, approve and challenge mergers, including collaborations between the states and the DOJ and FTC.

Common Ownership/Interlocking Directorates

The agencies have signalled a renewed interest in deals that result in the common ownership of competing firms through partial acquisitions, following robust academic debate regarding whether the concentration of shareholdings – in the hands of a few diversified investors – is anticompetitive. A partial acquisition is a transaction in which the purchaser agrees to acquire less than a 100% stake in the target. The Horizontal Merger Guidelines indicate that partial acquisitions can present competitive concerns where the purchaser is buying a stake in a competing company, even if the acquisition(s) does not result in effective control of the target.

As outlined in the Horizontal Merger Guidelines, the theory of harm of common ownership, stemming from partial acquisitions, is threefold. First, partial acquisitions could potentially lessen competition by granting the buyer the means to influence the competitive conduct of the acquired party. This influence could be gained through voting interests or other governance rights, leading to anticompetitive co-ordinated conduct between the companies or deliberately less aggressive competition on the part of the target.

Second, a partial acquisition could reduce the incentive of the acquiring firm to compete, because the losses of the target firm will be shared by the acquirer, regardless of whether the acquirer can actually influence the behaviour of the target.

Finally, partial acquisitions potentially give the acquiring firm access to confidential, and competitively sensitive, information from the target firm, potentially leading to anticompetitive unilateral or co-ordinated effects. Some transaction structures can also help to further facilitate the sharing of competitively sensitive information, potentially increasing the risks.

The rise of enforcement

Despite increasing attention and relevant statements from antitrust officials, enforcement changes have yet to materialise. However, the FTC recently filed an administrative complaint to unwind e-cigarette manufacturer Altria’s acquisition of a 35% stake in competitor JUUL, which may indicate the start of a more aggressive pattern of enforcement.

Relatedly, the agencies have also indicated a growing interest in enforcement of Section 8 of the Clayton Act, which prohibits a person from serving as a board-appointed officer or director of competing corporations if each of the corporations has “capital, surplus, and undivided profits” greater than an annually adjusted threshold. When Section 8 issues arise in a merger context, typical remedies involve requiring the resignation of relevant board members, or a divestiture or condition placed on the transaction to circumvent an overlap.

Historically, Section 8 enforcement has been uneven; however, recent agency remarks have suggested a potential shift to more aggressive and expansive application of the statute to limited liability companies or other non-incorporated entities. In a 2019 speech, the Assistant Attorney General of the DOJ’s Antitrust Division, Makan Delrahim, addressed the ambiguity around the term “corporation” as used in Section 8. While acknowledging that the DOJ was aware of the discourse both for and against applying Section 8 to non-incorporated entities, Delrahim said “[i]t is not clear from [the DOJ’s] review of the legislative history that Congress intended to limit the application of Section 8 solely to corporations. Moreover…the competition analysis is the same…We are thinking about how to bring this thinking to Section 8 as well.”

Treatment of Ancillary Non-Compete/Non-Solicitation Agreements

The DOJ and FTC have been increasingly aggressive in labour markets over the years following the issuance of 2016’s Antitrust Guidelines for Human Resource Professionals. This increased scrutiny has expanded to the agencies’ merger control activities. Specifically, a trend of ramping enforcement emerged concerning non-compete/non-solicitation agreements that are ancillary to merger transactions.

Ancillary non-compete and non-solicitation agreements are often sought in transactions to help preserve the value of the transaction for the buyer by mitigating potential losses of valuable employees to competitors. However, the FTC has made clear that they expect any such ancillary agreements to be narrowly tailored to address legitimate business concerns related to the precise assets at issue, and of relatively short duration – borne out in the agency’s recent merger enforcement.

Two administrative complaints filed by the FTC, seeking to unwind mergers with ancillary non-compete and non-solicitation agreements, are perhaps emblematic of the commitment of the agencies to enforcement in this area. In January 2020, the FTC issued an administrative complaint regarding the consummated merger of Axon Enterprise and VieVu, which included among its allegations a challenge to non-compete and non-solicitation agreements that Axon entered with VieVu’s parent company, which were allegedly company-wide and broader than the assets-at-issue and lasted more than a decade. A few months later in April, the FTC issued its administrative complaint regarding Altria’s investment in e-cigarette manufacturer JUUL alleging that, ancillary to the acquisition, the companies entered into a noncompete agreement under which Altria exited the e-cigarette market entirely.

Additionally, the FTC imposed a condition in its settlement of a pipeline acquisition by DTE Energy that required the parties of the transaction to eliminate a non-compete clause from their sales agreement. These actions suggest that ancillary non-competes will continue to be an ongoing focus of the agencies.

Merger Control in Healthcare

Healthcare and pharmaceuticals continue to be active spaces in merger review and enforcement, with multiple lengthy agency investigations of high-profile transactions and several challenges. The agencies continue to closely scrutinise horizontal mergers in the payer, provider, pharmacy benefit management, and pharmaceutical segments of the healthcare industry. Consistent with the agencies’ approach in other industries, the FTC and DOJ are also increasingly interested in the vertical dimensions of healthcare transactions.

With respect to the division of merger reviews between agencies, the FTC continues its tendency to review mergers between healthcare providers, while the DOJ tends to review mergers that involve either payers or pharmacy benefit managers.

The past year also saw the investigation and subsequent settlement of several healthcare deals spanning multiple states, including the acquisition of healthcare provider DaVita Medical Group by UnitedHealth Group, settled with the FTC in August 2019; and the DOJ’s settlements in the mergers of CVS/Aetna and Centene/Wellcare in late 2019 and early 2020, respectively. In February 2020, the FTC also authorised an action to block the merger of Pennsylvania hospitals Jefferson Health and Albert Einstein Healthcare Network, a proceeding that is ongoing as of the time of writing.

Enforcement in a COVID-19 World

As the world adapts to life during the COVID-19 pandemic, speculation abounds as to how the crisis will affect antitrust enforcement, particularly in the context of healthcare mergers. Presently, some initial signals suggest what may and may not change in terms of merger enforcement.

COVID-19 is doubtless on the minds of antitrust enforcers; the DOJ and FTC have issued joint statements addressing COVID-19 and antitrust since the start of the crisis. In these statements, the agencies recognised the potential need for limited competitor collaboration to engage in new product development or capacity expansion in response to COVID-19. In order to allow companies to work together to meet the needs of communities impacted by the pandemic, the agencies introduced an expedited review process for evaluating proposed joint conduct.

While recognising the potential necessity of such collaboration, the statements also strongly affirmed the agencies’ commitment to enforcing antitrust laws in labour markets, with an eye towards protecting labour markets for essential workers, including doctors, nurses, and first responders.

Prompting change

There have also been suggestions that COVID-19 should prompt more drastic changes in enforcement, particularly as it relates to mergers and acquisitions. For example, Commissioner Rohit Chopra, in his dissenting statement regarding the consent order reached by the FTC and the parties to the merger of pharmaceutical companies AbbVie and Allergan, noted “[t]he current coronavirus outbreak and resulting public health and economic emergency are rightfully leading many government officials to question status quo approaches to policy, regulation, and enforcement”.

Additionally, a number of high-profile politicians including former Presidential candidate Senator Warren, and House Judiciary Antitrust Subcommittee chair, Representative Cicilline of Massachusetts, have publicly called for a stop to mergers during the pandemic.

Killer Acquisitions

Concern over widely-publicised shortages of ventilators during the COVID-19 crisis prompted additional discussion of a subject that has also been the subject of agency focus in the past few years, so-called “killer acquisitions.” The “killer acquisitions” theory posits that acquisitions of potentially disruptive new competitors can prevent the fledgling competitor from growing into a significant independent competitive force capable of challenging the acquirer.

In April 2020, House Democrats on the antitrust subcommittee wrote a letter to FTC Chairman Joseph Simons requesting documents related to what the committee members characterised as a “killer acquisition” by one medical device and ventilator manufacturer of a potentially disruptive competitor, speculating as to whether the FTC’s grant of HSR early termination for the merger may have contributed to the ventilator shortage during the pandemic.

The letter coincides with other recent agency moves to retroactively inspect acquisitions of fledgling competitors. Both the DOJ and FTC have been tightly focused on so-called “killer acquisitions,” or acquisitions of nascent competitors, in recent years, with the agencies’ interest in such acquisitions spanning industries.

FTC Special Orders

In February 2020, the FTC announced that it had issued Special Orders to five large technology companies, launching a rare market study that will closely examine non-reportable transactions the companies (Alphabet Inc, Amazon.com, Inc, Apple Inc, Facebook, Inc and Microsoft Corp) consummated in the past decade. One of the stated purposes of the study, according to the FTC’s announcement on 11 February 2020, is to determine “whether large tech companies are making potentially anticompetitive acquisitions of nascent or potential competitors”. The study, while focused on the tech sector, potentially holds implications for the merger rules across industries, and the agencies may soon shift their focus towards acquisitions of nascent competitors in healthcare.

The moniker “killer acquisitions” originates from a widely-discussed paper examining acquisitions in the pharmaceutical industry, which may become another focus for the FTC and DOJ, while the speculation surrounding whether “killer acquisitions” may have contributed to device shortages during the COVID-19 pandemic could prompt the agencies to further scrutinise smaller healthcare deals.

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Dechert LLP is highly regarded for its innovative antitrust advice in the most challenging settings. The firm’s antitrust practice has 11 partners and 27 counsel and associates in the United States, Brussels, France and Germany. Across industries and regions, industry leaders rely on Dechert’s market knowledge and proven counsel to secure clearance for high-value and challenging deals, defeat monopolisation claims, resolve cartel or civil investigations, defeat class actions, and promote and ensure antitrust compliance. Dechert combines its knowledge of antitrust law with hands-on experience in government affairs, economics, communications, and a pragmatic approach to commercial issues. In 2020 Dechert secured a trial victory following the FTC’s attempt to block the Evonik/PeroxyChem merger, the FTC’s first loss in a merger trial in federal court in Washington, DC since 2007 when Dechert successfully represented Whole Foods Market in its acquisition of Wild Oats. Dechert also recently secured approval for CVS Health’s USD70 billion acquisition of Aetna, the largest healthcare deal ever.

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Baker Botts, LLP has over 70 lawyers based in Washington, DC, Brussels, London, San Francisco, Houston and New York. Baker Botts’ antitrust team has the sophistication and bench strength to take on our clients’ most significant challenges. Our team of skilled competition lawyers are dedicated exclusively to the area of antitrust and competition law in the US and worldwide, bringing sound commercial judgment to our clients’ most challenging competition matters, along with acute understanding of the varied legal, technical and policy issues faced. Clients range from Global 1,000 companies to innovative start-ups, across diverse industry groups. The firm advises on the full spectrum of antitrust matters, including clearance for mergers and acquisitions, complex litigation and class actions, international cartel investigations, proceedings by European and other international enforcement agencies, and antitrust counselling and compliance.

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