US Merger remedies

Anticompetitive practices

The US Supreme Court immunizes from antitrust liability pricing-fixing agreements of a legitimate joint venture (Texaco/Dagher)
University of Central Florida - Department of Legal Studies
Something Radical is Afoot: Texaco, Inc. v. Dagher and the Revolutionary Treatment of Price Fixing in the Joint Venture Context* This article analyzes a 2006 decision by the U.S. Supreme Court in Texaco, Inc. v. Dagher, which immunized joint venturers from antitrust liability for fixing the (...)

The US Supreme Court rules unanimously that the joint venture’s unified price between two companies’ brands of gasoline was not a price-fixing in violation of s. 1 of the Sherman Act (Texaco / Dagher)
Paul Hastings (Washington)
Joint Ventures and The Supreme Court’s Decision in Texaco, Inc V Dagher: A Win for Substance Over Form* NOTE: In the summer of 2004, the Court of Appeals for the Ninth Circuit issued its opinion in Dagher v. Saudi Refining, Inc., holding that the decision of a legitimate joint venture between (...)

Mergers

A US State Court rejects a proposed consent judgement for under-addressing the competitive harm (Commonwealth / Partners Healthcare System)
Simpson Thacher & Bartlett (New York)
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New York State Executive Chamber
Massachusetts Court Unsettles Partners’ Hospital Merger By Nixing Consent Judgment* A Massachusetts state court on Thursday derailed the settlement of a challenge to the proposed merger of Partners Health System with rivals South Shore Health and Educational Corp. (South Shore Hospital) and (...)

The US FTC approves the 2013 Hart-Scott-Rodino premerger notification program, which provides the enforcing agencies with information about large mergers and acquisitions before they occur
Sheppard Mullin (Washington)
Some Interesting Numbers Regarding Merger Review: The Hart-Scott-Rodino Annual Report for Fiscal Year 2013* The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) requires that proposed acquisitions of voting securities, assets or non-corporate interests meeting certain (...)

A US District Court orders the largest care system in Idaho to divest independent multi-specialty physician practice (St. Luke’s Health System / Saltzer Medical)
Wolters Kluwer (Riverwoods)
Combination of Idaho’s Largest Health System and Largest Physician Practice Must Be Unwound* Within the span of about two weeks, each of the federal antitrust agencies has been handed a major win in their merger enforcement efforts. Last Friday, it was the Federal Trade Commission’s turn. The (...)

A US District Court finds evidence that the merging parties expected the transaction to have anticompetitive effects (Bazaarvoice / PowerReviews)
Orrick, Herrington & Sutcliffe (San Francisco)
Another Example of Why You Should Follow the “New York Times” Rule — the Bazaarvoice Decision* Have you heard of the New York Times rule? The rule is: don’t write something down in a business communication unless you’re comfortable with its text appearing in the New York Times. If everyone followed (...)

A US District Court rules against non-reported acquisition in the market for product ratings and reviews platforms (Bazaarvoice / PowerReviews)
Wolters Kluwer (Riverwoods)
Combination of online consumer review platforms Bazaarvoice and PowerReviews found to violate Clayton Act* Last week, the federal district court in San Francisco ruled that Bazaarvoice Inc.’s June 2012 acquisition of PowerReviews Inc. violated Sec. 7 of the Clayton Act. In a “necessarily lengthy (...)

The U.S. Department of Justice announces an agreement to settle the antitrust litigation challenging the merger of two air carriers (US Airways / American Airlines)
Cadwalader Wickersham & Taft (New York)
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Cadwalader Wickersham & Taft (Washington)
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Cadwalader Wickersham & Taft (Washington)
On November 12, 2013, US Airways, American Airlines, the U.S. Department of Justice (“DOJ”), and several state Attorneys General announced an agreement to settle the antitrust litigation challenging the merger of the two carriers. Cadwalader, Wickersham & Taft LLP acted as antitrust counsel (...)

The US FTC challenges an acquisition in the market for audience measurement services (Nielsen / Arbitron)
Wilson Sonsini Goodrich & Rosati (Washington)
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Wilson Sonsini Goodrich & Rosati (Washington)
Background On December 18, 2012, Nielsen announced a $1.26 billion deal to acquire Arbitron. Both firms offer a variety of audience measurement services, which help advertisers and media companies estimate how many people tune-in to particular media content and the demographics of those (...)

The US FTC agrees to "unusual" remedy in hospitals merger case (Phoebe Putney Health System)
Jones Day (Washington)
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Jones Day (Washington)
The U.S. Federal Trade Commission has settled its long running dispute with the Phoebe Putney Health System, Palmyra Park Hospital, and the Hospital Authority of Albany-Dougherty County over the Hospital Authority’s acquisition of Palmyra in Albany, Georgia. Memorialized in a consent decree, the (...)

The New York Attorney General settles remedies regarding the merger between two leading online food ordering services in Manhattan (Seamless / GrubHub)
Stanford University - Stanford Law School
NY Attorney General reaches settlement with two leading online food ordering services in Manhattan* On 5 August 2013 NY Attorney General stated that he reached a settlement with Seamless North America, LLC and GrubHub, two leading online food ordering services in Manhattan, in order to address (...)

The US FTC requires divestiture of production and intellectual property assets before clearing an acquisition in the market for desktop hard drives (Western Digital / Hitachi GST)
Sheppard Mullin (New York)
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WilmerHale (Washington)
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US Federal Trade Commission (FTC) (Washington)
On May 8, 2012, Western Digital Corporation (“Western Digital”) completed its acquisition of Viviti Technologies (formerly, Hitachi Global Storage Technologies Ltd., or, “Hitachi GST”) for approximately $4.8 billion, after the Federal Trade Commission (“FTC”) approved a consent order requiring (...)

The US DOJ insists on divestiture of the entire US operations before approving acquisition in the beer industry (AB InBev / Grupo Modelo)
Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Washington)
Introduction Early in his Second Inaugural Address, President Obama declared: “Together, we discovered that a free market only thrives when there are rules to ensure competition and fair play”. With this statement, President Obama became just the sixth president to make reference to the (...)

The US DOJ shows flexibility in crafting structural remedies in merger between two leading brewers (Anheuser-Bush InBev / Grupo Modelo)
Jones Day (Washington)
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Jones Day (Washington)
The U.S. Department of Justice ("DOJ") has reached a settlement with Anheuser-Busch InBev ("ABI") and Grupo Modelo S.A.B. de C.V. ("Modelo"), requiring ABI to divest Modelo’s entire U.S. business to Constellation Brands Inc. ("Constellation"). The consent decree provides for a straightforward (...)

The U.S. DOJ challenges the acquisition by the market leader of product ratings and reviews platforms of its alleged closest competitor (Bazaarvoice/PowerReviews)
Wilson Sonsini Goodrich & Rosati (Washington)
On January 10, 2013, the U.S. Department of Justice sued Bazaarvoice, Inc. alleging that its acquisition of PowerReviews, Inc. in June 2012 violated Section 7 of the Clayton Act. The complaint alleges that Bazaarvoice was the market leader for product ratings and reviews platforms (PRR (...)

The US DoJ imposes a divestiture and hold separate order before approving an acquisition in the market for electric power (Exelon / Constellation)
Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Washington)
Introduction Early in his Second Inaugural Address, President Obama declared: “Together, we discovered that a free market only thrives when there are rules to ensure competition and fair play”. With this statement, President Obama became just the sixth president to make reference to the (...)

The US FTC requires FRAND commitments as part of merger settlement in the industry of automotive diagnostics (SPX / Bosch)
Baker McKenzie
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Dechert (Washington)
FTC Requires FRAND Commitments as Part of Merger Settlement with Broad Implications* On November 26, 2012, the FTC and Robert Bosch GmbH entered into a Consent Agreement that resolved the FTC’s inquiry into Bosch’s $1 billion acquisition of SPX Services. As part of the Consent Agreement the FTC (...)

The US FTC orders divestitures plus novel standard essential patent remedy in a merger between two leading suppliers of air conditioning recycling products (Bosch/SPX)
Goodwin Procter (Washington)
On November 26, 2012, by a 3-2 vote, the United States Federal Trade Commission (FTC) announced a settlement in connection with the acquisition of SPX Service Solutions US, LLC (SPX) by Robert Bosch GmbH (Bosch). The settlement is noteworthy not because it contained a predictable requirement to (...)

The US FTC proposes acquisition consent agreement to resolve unprecedented allegations on enforcement of standards-essential patents (Bosch / SPX)
Jones Day (Washington)
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Jones Day (Washington)
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Jones Day (Sillicon Valley)
The U.S. Federal Trade Commission this week announced a highly unusual proposed consent agreement reached with Robert Bosch GmbH ("Bosch") that permits Bosch’s acquisition of SPX Service Solutions U.S. LLC ("SPX Service Solutions") from SPX Corporation ("SPX") to proceed. More significantly, it (...)

The US FTC seeks divestiture and conduct remedies before approving an acquisition in the highly concentrated market for commercial real estate information (CoStar / Loopnet)
Venable (New York)
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Venable (Washington)
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Venable (Washington)
After a year of scrutiny, the Federal Trade Commission (FTC) resolved its competitive concerns over the merger of two firms that provide commercial real estate (CRE) listings and other data. In April 2011, CoStar Group, Inc. announced plans to acquire LoopNet, Inc. for approximately $860 (...)

The US FTC imposes divestiture and "unusual" conduct remedies to protect the competitor after an acquisition in commercial real estate databases and information services (CoStar / Loopnet)
Weil, Gotshal & Manges (Washington)
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Weil, Gotshal & Manges (Washington)
On April 26, 2012, the FTC challenged CoStar Group’s proposed $860 million acquisition of LoopNet and accepted a settlement that required not only divestitures, but also “unusual” additional conduct remedies. CoStar is the largest provider of commercial real estate (CRE) information services in (...)

The US DoJ announces that an executive of a South Korean company agreed to plead guilty to obstruction of justice charges and to serve five months in prison for altering documents filed with the DOJ and the FTC in connection with a proposed merger
Sheppard Mullin (Washington)
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Sheppard Mullin (Washington)
Tampering With Documents In Connection With Hart-Scott-Rodino Merger Submissions Can Land You In Jail!* One does not usually associate the possibility of criminal penalties with the Hart-Scott-Rodino Act premerger review process. However, on May 3, 2012, the U.S. Department of Justice ("DOJ") (...)

The US DoJ conditions merger approval upon divestiture of supply contracts in 8 local school districts affecting the market for school bus transportation services (National Express / Petermann)
Akin Gump Strauss Hauer & Feld (Dallas)
On April 30, 2012, the Department of Justice announced a conditional approval of the merger between National Express Corporation and Petermann Partners Inc., hinging upon the divestiture of the merging firms’ service contracts in 8 local markets. National Express and Petermann serve as (...)

The US DoJ closes its investigation regarding the acquisition of patents and applications from leading smartphone hardware manufacturer (Google / Motorola Mobility)
Womerang
“Honor your commitments” - The patent gatekeeping problem after antitrust regulators in the United States and the European Union cleared Google’s acquisition of Motorola’s patent pool* On February 13, 2012, the Department of Justice’s Antitrust Division (the Division) announced its decision to (...)

The US Department of Justice conditionally approves combination of stock exchanges groups while the EU Commission’s review is still pending (NYSE Euronext / Deutsche Börse)
Wolters Kluwer (Riverwoods)
U.S. Justice Department Conditionally Approves Combination of Stock Exchange Groups, European Review Still Pending* The prospects for the merger of Deutsche Börse AG and NYSE Euronext are looking a little brighter, since the U.S. Department of Justice Antitrust Division conditionally approved (...)

The US DoJ imposes divestiture of US operations before clearing a merger in the highly concentrated markets for point-of-sale terminals tailored for small and large retail stores (VeriFone / Hypercom)
King & Spalding
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King & Spalding (Washington)
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King & Spalding (Washington)
The Department of Justice (DOJ) filed two civil antitrust lawsuits, challenging, on May 10, the consummated merger between George’s Inc. and Tyson Foods and, on May 12, the proposed acquisition by Verifone Systems, Inc. of Hypercom Corp. Neither transaction was subject to the pre-merger (...)

The US DoJ requires divestiture of the entire US business, but to a different buyer than the one proposed by the parties, before approving a merger in the market for point-of-sale terminals in retail stores (VeriFone / Hypercom)
Jones Day (Sillicon Valley)
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Jones Day (Washington)
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Jones Day (Sillicon Valley)
In any transaction involving the combination of two or more competitors, M&A lawyers should consider whether antitrust issues may impact the deal, and how they can be addressed in the merger agreement. Most of the transactions closely scrutinized by the U.S. antitrust authorities are (...)

The US FTC announces consent agreement to address its concerns that a proposed acquisition would reduce competition in the provision of acute inpatient psychiatric services in three local markets (Universal Health Services / Psychiatric Solutions)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (Palo Alto)
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Kirkland & Ellis (New York)
On November 15, the Federal Trade Commission (FTC) announced a proposed consent agreement to address the agency’s allegations that the $3.1 billion acquisition of Psychiatric Solutions, Inc. by Universal Health Services, Inc. (UHS) would reduce competition in the provision of acute inpatient (...)

The US DoJ requires divestiture of a processing plant in exchange for settling the investigation of a merger in the chicken processing industry (George’s Foods / Tyson Foods)
King & Spalding
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King & Spalding (Washington)
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King & Spalding (Washington)
The Department of Justice (DOJ) filed two civil antitrust lawsuits, challenging, on May 10, the consummated merger between George’s Inc. and Tyson Foods and, on May 12, the proposed acquisition by Verifone Systems, Inc. of Hypercom Corp. Neither transaction was subject to the pre-merger (...)

The European Commission together with the US DoJ and FTC jointly issues revised best practices on cooperation in merger investigations
Sullivan & Cromwell (Brussels)
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Wilson, Sonsini, Goodrich & Rosati (Brussels)
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Wilson Sonsini Goodrich & Rosati (Washington)
This article is the winner for the business category, mergers section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. The Competition Directorate-General of the European Commission (DG Competition) and the Department of Justice (DOJ) and (...)

The US DoJ requires conduct remedies before allowing a vertical merger between a popular generic online search engine and a widely-used flight information services provider (Google / ITA)
Economists Incorporated (San Francisco)
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Economists Incorporated (Washington)
On July 1, 2010, Google Inc. (“Google”) and ITA Software, Inc. (“ITA”) announced an agreement for Google to acquire ITA for $700 million. On April 8, 2011, the Department of Justice (“DOJ”) announced that it would allow the proposed acquisition subject to certain conditions. DOJ filed a complaint (...)

The US DoJ imposes conduct remedies, including "FRAND" licensing, before approving a vertical merger with anticompetitive concerns in the comparative-flight-search industry (Google / ITA)
Robins, Kaplan, Miller & Ciresi (Minneapolis)
According to conventional wisdom, the Department of Justice and the Federal Trade Commission prefer structural merger remedies like divestiture over remedies that require ongoing monitoring of post-merger conduct. Structural remedies offer comparative ease of implementation and require (...)

The US DoJ requires conduct remedies before allowing a vertical merger between a popular generic online search engine and a widely-used flight information services provider (Google / ITA)
Robins, Kaplan, Miller & Ciresi (Minneapolis)
According to conventional wisdom, the Department of Justice and the Federal Trade Commission prefer structural merger remedies like divestiture over remedies that require ongoing monitoring of post-merger conduct. Structural remedies offer comparative ease of implementation and require (...)

Seven US States join US DoJ in suit to block the proposed combination of two of the four largest providers of mobile wireless telecommunications services (AT&T/T-Mobile)
Wolters Kluwer (Riverwoods)
Seven States Join U.S. in Suit to Block AT&T’s Acquisition of T-Mobile* The Attorneys General of California, Illinois, Massachusetts, New York, Ohio, Pennsylvania, and Washington have signed on to the U.S. Justice Department’s complaint challenging AT&T, Inc.’s proposed $39 billion (...)

The US DoJ conditions approval of a joint venture upon behavioral remedies, such as specific terms of licensing and management of video content, in the industries of online video distribution and video programming (Comcast and NBC Universal)
Crowell & Moring (Washington)
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Crowell & Moring (Washington)
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United Airlines
U.S. antitrust agencies, in a flurry of recent actions, have reinvigorated vertical merger enforcement, claiming competitive harm from what, in the past, would potentially have been viewed as efficiency-enhancing vertical integration. The Department of Justice (“DOJ”), in particular, has (...)

The US DoJ seeks conduct remedies prior to approving a joint venture in order to prevent exclusionary conduct in the markets for online video distribution and video programming (Comcast and NBC Universal)
American University’s Washington College of Law
The Federal Communication Commission’s recent decision to allow the transaction between Comcast and General Electric’s NBC Universal (NBCU) affiliate to proceed subject to conditions1 helped to fill a gap in the contemporary treatment of vertical mergers. The existence of this gap was (...)

The US FTC announces changes to reduce the filing burden and streamline the form parties must file when seeking antitrust clearance of proposed mergers and acquisitions under the HRS Act and the Premerger Notification Rules
Sheppard Mullin (Washington)
New Amendments To Hart-Scott-Rodino Premerger Notification Rules* On July 7, 2011, the Federal Trade Commission announced a final rule amending the Hart-Scott-Rodino Premerger Notification Rules (the "Rules") and the Premerger Notification and Report Form (the "Form") and associated (...)

The US DoJ issues the new policy guide to merger remedies
Akin Gump Strauss Hauer & Feld (Washington)
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Morrison & Foerster (Washington)
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Bona Law (New York)
This article has been selected for the business category, mergers section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. Summary On Friday, June 17, 2011, the U.S. Department of Justice released the Antitrust Division’s Policy Guide to Merger (...)

The US DoJ expresses antitrust concerns on a proposed merger in the equity market sector leading the companies to abandon the deal (Nasdaq OMX, NYSE Nasdaq)
Wolters Kluwer (Riverwoods)
Threat of U.S. Antitrust Challenge Leads Nasdaq to Abandon Pursuit of NYSE* Nasdaq OMX Group, Inc. and IntercontinentalExchange (ICE) have withdrawn their proposal to acquire NYSE Euronext in the face of antitrust objections from the U.S. Department of Justice. The Justice Department issued a (...)

The US DOJ clears an acquisition subject to conditions in the IT industry (Google / ITA)
Jones Day (Houston)
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Jones Day (Sillicon Valley)
The U.S. Department of Justice has announced that, to allow Google’s proposed acquisition of ITA Software, DOJ and the parties have agreed to a set of requirements that will govern Google’s future operation of the ITA business. This action is notable as another challenge to a vertical merger and (...)

The US DoJ allows acquisition of the leading airfare pricing provider by the largest Internet search provider with settlement reflecting antitrust enforcement trends (Google / ITA)
Jones Day (Houston)
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Jones Day (Sillicon Valley)
On October 5, 2011, following a public comment period, the U.S. District Court for the District of Columbia issued its final judgment approving the requirements Google and ITA Software have agreed to in order to address the U.S. Department of Justice’s alleged anticompetitive concerns stemming (...)

The US DoJ requires minor conduct remedies before approving a vertical merger affecting the market for petroleum needle coke (GrafTech / Seadrift)
McDermott Will & Emery (Washington)
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McDermott Will & Emery
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McDermott Will & Emery (Washington)
McDermott Will & Emery lawyers succeeded in obtaining the necessary antitrust approval for clients Seadrift Coke L.P. (Seadrift), the world’s second largest petroleum-based needle coke producer, and C/G Electrodes LLC (C/G), a U.S.-based graphite electrode producer, which have been acquired (...)

The US DoJ reaches consent agreement with parties to an acquisition in the graphite electrodes market (GrafTech / Seadrift)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Palo Alto)
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Kirkland & Ellis (New York)
On November 29, 2010, the Department of Justice (DOJ) announced a consent agreement with GrafTech International relating to its acquisition of Seadrift Coke L.P. (Seadrift). This action marks the second time this year that the DOJ has sought relief in a vertical merger. It also represents the (...)

A US Court of Appeals denies divestiture as equitable relief for Missouri consumers seeking to enjoin the transaction between the two largest brewers under the Clayton Act (Ginsburg / InBev)
Benjamin N. Cardozo School of Law
I. Introduction Section 7 of the Clayton Act outlaws acquisitions, directly or indirectly, the whole or any part of the stock or other share capital, the effect of such acquisition, may be substantially to lessen competition, or tend to create a monopoly. In this cause, to establish liability (...)

The US FTC imposes conduct remedies prior to clearing a vertical merger causing anticompetitive concerns in the soft drink industry (PepsiCo / Pepsi Bottling)
Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Washington)
After a decade of what was perceived by many as relatively restrained merger enforcement, the Obama administration has repeatedly and vocally vowed to “reinvigorate antitrust enforcement” and to “take effective action to stop or restructure mergers that are likely to harm consumer[s]”. Many (...)

The US District Court for the District of Minnesota dismisses FTC complaint seeking divestiture and disgorgement remedy in consummated acquisition in the healthcare industry (Lundbeck)
Jones Day (Washington)
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Jones Day (Washington)
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Jones Day (Washington)
In a decision that was filed under seal in late August but released publicly just last week, the U.S. District Court for the District of Minnesota dismissed with prejudice the complaint filed by the Federal Trade Commission (FTC) and the State of Minnesota challenging the already-consummated (...)

The US DoJ approves a merger upon the leasing of 18 round-trip flight to a competitor in the airline industry (United / Continental)
Akin Gump Strauss Hauer & Feld (Dallas)
The DOJ cleared the merger between United and Continental Airlines, pursuant to their agreement to lease routes for 18 round-trip flights to and from Newark Liberty International Airport to Southwest Airlines. As a surprise to many, the DOJ’s analysis determined that the flight routes and (...)

The US DoJ and FTC issue new horizontal merger guidelines increasing antitrust attention on mergers limiting innovation
University of Pennsylvania (Philadelphia)
The 2010 Horizontal Merger Guidelines and Restraints on Innovation* The 2010 Horizontal Merger Guidelines give increased treatment to a topic that was not well developed in previous Guidelines – namely, mergers that threaten to restrain innovation. The 1968 Guidelines had contained a statement (...)

The US DoJ imposes divestiture and conduct remedies before approving a merger in order to maintain competition recently introduced by one of the firms in the market for primary ticketing services (Ticketmaster / Live Nation)
Robins, Kaplan, Miller & Ciresi (Minneapolis)
According to conventional wisdom, the Department of Justice and the Federal Trade Commission prefer structural merger remedies like divestiture over remedies that require ongoing monitoring of post-merger conduct. Structural remedies offer comparative ease of implementation and require (...)

The US DoJ demands divestiture and licensing to create two new competitors and imposes conduct remedies to limit the benefits of vertical integration in a merger concerning the industry for primary ticketing services at concert venues (Ticketmaster / Live Nation)
Kelley Drye & Warren (Washington)
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Kelley Drye & Warren (New York)
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Kelley Drye & Warren (Washington)
The Department of Justice Antitrust Division (“DoJ”), along with 17 state attorneys general, reached an agreement with the parties last week that allows the merger of Ticketmaster Entertainment, Inc. (“Ticketmaster”) and Live Nation, Inc. (“Live Nation”) to proceed. The parties agreed to a (...)

The US DoJ seeks to divest part of the business and require the licensing of software in order to mitigate anticompetitive effects of a merger in the ticketing services industry (Ticketmaster / Live Nation)
Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Washington)
After a decade of what was perceived by many as relatively restrained merger enforcement, the Obama administration has repeatedly and vocally vowed to “reinvigorate antitrust enforcement” and to “take effective action to stop or restructure mergers that are likely to harm consumer[s]”. Many (...)

The US DoJ conditions approval of a vertical merger upon the implementation of structural and behavioral remedies to protect the market for primary ticketing services (Ticketmaster / Live Nation)
Crowell & Moring (Washington)
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Crowell & Moring (Washington)
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United Airlines
U.S. antitrust agencies, in a flurry of recent actions, have reinvigorated vertical merger enforcement, claiming competitive harm from what, in the past, would potentially have been viewed as efficiency-enhancing vertical integration. The Department of Justice (“DOJ”), in particular, has (...)

The US DoJ requires rescission of a merger-to-monopoly and puts conduct remedies in place to ensure competition in the market for local newspapers in a city in West Virginia (Daily Gazette / MediaNews)
Akin Gump Strauss Hauer & Feld (Dallas)
The DOJ entered into a consent decree with two local West Virginia newspaper owners, requiring them to rescind a merger three years after its consummation. The Daily Gazette Company and MediaNews Group, Inc. had entered into a two-to-one merger, creating a monopoly from the only two local (...)

The US DoJ challenges consummated USD 5 M merger in the voting equipment systems industry (Election Systems and Software / Premier Election Solutions)
Simpson Thacher & Bartlett (New York)
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U.S. Department of Justice (Washington)
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Fried Frank Harris Shriver & Jacobson (Washington)
On March 8, 2010, the Antitrust Division of the Department of Justice (the "DOJ") and nine states announced a settlement in their challenge of Election Systems & Software Inc.’s ("ES&S") $5 million acquisition of Premier Election Solutions, Inc. and PES Holdings, Inc. ("Premier"). At the (...)

The US FTC imposes remedies before clearing a merger affecting multiple markets for animal health and pharmaceutical products (Pfizer / Wyeth)
Akin Gump Strauss Hauer & Feld (Dallas)
The FTC entered into a consent agreement with Pfizer Inc. and Wyeth, requiring divestiture of one entity’s U.S. operations in over 20 markets for various animal health and pharmaceutical products. The consent order, established on January 25, 2010, sets forth the divestiture of Wyeth’s U.S. (...)

The US FTC employs a creative remedy, requiring the offer of divestiture to determine the existence of a viable alternative purchaser, before approving the merger of acute care hospitals (King’s Daughters Hospital / Scott & White)
Cleary Gottlieb Steen & Hamilton (Cologne)
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Cleary Gottlieb Steen & Hamilton (Washington)
After a decade of what was perceived by many as relatively restrained merger enforcement, the Obama administration has repeatedly and vocally vowed to “reinvigorate antitrust enforcement” and to “take effective action to stop or restructure mergers that are likely to harm consumer[s]”. Many (...)

The US FTC requires an unusual method of testing for a less anticompetitive purchaser by offering the sale before completing the requisite due diligence, then clearing the merger in the acute care facilities industry (King’s Daughters Hospital / Scott & White)
Milbank, Tweed, Hadley & McCloy (New York)
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Jones Day
Healthcare reform and concerns about consolidation in the health care industry juxtaposed with continuing economic distress provided a fascinating backdrop for the Federal Trade Commission’s (FTC’s) recent investigation of Scott & White Healthcare’s consummated acquisition of King’s (...)

The US FTC agrees to settle a merger case with US leading organic food supermarket (Whole Foods Market)
Jones Day (Houston)
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Jones Day (Washington)
Today the Federal Trade Commission and Whole Foods Markets settled the FTC’s challenge to Whole Foods‘ 2007 acquisition of Wild Oats Markets, which the agency alleged would lessen competition in the operation of « premium natural and organic supermarkets. » Although not an unmitigated victory for (...)

The US DOJ files an antitrust lawsuit to challenge a consummated merger in the manufacture and sale of specialized electronic components (Microsemi, Semicoa)
Jones Day (Houston)
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Jones Day (Washington)
In another reminder that U.S. antitrust enforcers can challenge mergers even after closing, and even for deals not subject to premerger notification under the HSR Act, on December 18, 2008, the Department of Justice Antitrust Division filed a civil antitrust lawsuit challenging the July 2008 (...)

The US FTC seeks disgorgement remedy in challenge against pharma company for illegally acquiring drugs used to treat premature babies with life-threatening heart condition (Ovation)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
Continuing a trend of increasing aggressiveness in antitrust enforcement, the Federal Trade Commission (FTC) is seeking disgorgement in a challenge to Ovation Pharmaceutical Inc.’s acquisition of the drug NeoProfen®, filed in the Minnesota District Court on Dec. 16, 2008. In the past, the FTC has (...)

The US DOJ requires extensive divestitures and changes the terms of licensing agreements before approving a merger in the market for genetically-engineered cotton seeds, but 13 state attorneys general claim these remedies do not solve the problem (Monsanto / Delta / Pine Land)
Office of the Texas Attorney General
The Monsanto Company has nearly completed its acquisition of Delta and Pine Land, uniting the two largest companies in the domestic, genetically- modified cotton seed industry. Subject to a Hart-Scott- Rodino review, the parties worked with the United States Department of Justice (“D.O.J.”) (...)

The US DOJ imposes non-traditional remedies in the form of both structural and conduct relief before clearing a merger in order to address the unique reliance on intellectual property and innovation required in the market for genetically-engineered cotton seeds (Monsanto / Delta / Pine Land)
Morrison & Foerster (Washington)
A recent settlement in a biotech merger case may signal a greater willingness by DOJ to accept remedy provisions it previously would have rejected, especially to resolve vertical issues in industries heavily dependent on intellectual property and innovation. Rather than challenge Monsanto’s (...)

The US FTC places a price cap on intra-company prices as a condition precedent to clearing a merger in the market for iron sucrose administrated intravenously (Fresenius / Daiichi)
Weil, Gotshal & Manges (Washington)
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US Federal Trade Commission (FTC) (Washington)
On September 15, 2008, the FTC announced that it challenged a manufacturing, distribution, and supply agreement between Fresenius Medical Care Ag & Co. KGaA (Fresenius) and Daiichi Sankyo Company, Ltd. (“Daiichi”) based on allegations that the proposed transaction would violate U.S. (...)

The US FTC imposes the divestiture of a distribution agreement and the installation of a firewall to protect competition in the markets of five distilled spirits against the anticompetitive effects of a merger (Pernod Ricard / V&S Vin & Sprit)
Akin Gump Strauss Hauer & Feld (Dallas)
On October 17, 2008, the FTC announced that it had finalized the consent decree entered into with Pernod Ricard and V&S Vin & Sprit to approve the merger of these two companies. Through an acquisition agreement signed on March 30, 2008, Pernod purchased V&S from the Swedish (...)

The US Nevada Attorney General, operating in conjunction with the US DOJ, imposes divestiture and other conduct remedies, such as making charitable contributions and prohibiting most-favored nation clauses, as conditions precedent to approving a merger of health plan insurance companies (UnitedHealth / Sierra Health)
On February 25, 2008, Nevada Attorney General Catherine Cortez Masto filed a complaint in federal court in Nevada, alleging that the proposed acquisition of Sierra Health Services, Inc. (“Sierra”) by UnitedHealth Group Incorporated (“United”) violated federal and state antitrust laws, reducing (...)

The US DoJ seeks divestiture and conduct remedies after breaking new ground by analyzing the anticompetitive impact on the Medicare Advantage system (UnitedHealth / Sierra Health)
Squire Patton Boggs (Washington)
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Cleary Gottlieb Steen & Hamilton
On February 25, 2008, UnitedHealth Group (United) and Sierra Health Services, Inc. (Sierra) announced that they would proceed with a merger whereby United will acquire all outstanding shares of Sierra in a transaction valued at $2.6 billion. Their statement came shortly after the United States (...)

The US DoJ requires divestiture of the Medicare Advantage line, while the Attorney General of Nevada adds conduct remedies, such as the implementation of internal firewalls, before clearing a merger in the market for health plans (UnitedHealth / Sierra Health)
Mintz Levin Cohn Ferris Glovsky and Popeo PC (Washington)
UnitedHealth Group Inc. (UnitedHealth) recently entered into a consent decree with federal and stateantitrust enforcement authorities in connection with its proposed acquisition of Sierra Health Services, Inc. (Sierra). The remedies secured by theDepartment of Justice and the Nevada State (...)

The US DoJ requires divestiture of operations in 4 cities prior to clearing a private-equity investor’s acquisition of a media company, thereby preventing anticompetitive effects in the market for radio stations (Bain Capital / Clear Channel)
Akin Gump Strauss Hauer & Feld (Dallas)
Bain Capital LLC (“Bain”), Thomas H. Lee Partners, L.P. (“THL”), and Clear Channel Communications Inc. (“Clear Channel”) entered into a consent decree with the DOJ on February 13, 2008 to close the DOJ’s investigation into Bain and THL’s acquisition of a 70% interest in Clear Channel. The consent (...)

A US Court of Appeals reverses ruling against preliminary injunction in the organic food sector lowering bar for the FTC to challenge a merger (Whole Foods / Wild Oats)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On July 29, 2008, the U.S. Court of Appeals for the D.C. Circuit reversed the denial of a preliminary injunction sought by the FTC against a merger of Whole Foods Market, Inc. and Wild Oats Markets, Inc., in a ruling that significantly lowers the bar for the FTC to obtain preliminary (...)

The US DoJ requires the sale of copies of three databases before approving a merger in the financial data sector (Thomson / Reuters)
US Federal Trade Commission (FTC) (Washington)
Despite the presence of a number of competitive overlaps and a nine– month investigation by the Antitrust Division of the U.S. Department of Justice (“DOJ”), after agreeing to sell copies of three databases in the U.S., Reuters Group PLC (Reuters) and The Thomson Corporation (Thomson) (...)

The US DoJ imposes the divestiture of US operations, including the manufacturing plant and related assets, prior to approving a merger in the market for carbon bonded ceramics products (Cookson / Foseco)
Akin Gump Strauss Hauer & Feld (Dallas)
The DOJ challenged the proposed merger of Cookson Group PLC and Foseco PLC, ultimately reaching a consent decree with the merging parties on March 4, 2008. The terms of the consent decree mandated that Foseco divest its U.S. operations for producing carbon bonded ceramics (“CBC") before (...)

The US DoJ conditions approval of a merger upon the divestiture of a Canadian subsidiary in order to preserve competition for ’tin mill’ products in the eastern United States (Mittal / Arcelor)
Akin Gump Strauss Hauer & Feld (Dallas)
On August 1, 2006, the DOJ announced that it had entered into a consent decree with Mittal Steel Company N.V. and Arcelor S.A., ending its investigation into their transaction. The consent decree required divestiture of Arcelor’s subsidiary Dofasco Inc., operating out of eastern Canada, as a (...)

The US FTC seeks divestiture of rights and assets to five different medications before approving a merger, which would affect the markets for generic injectable pharmaceuticals (Hospira / Mayne)
Akin Gump Strauss Hauer & Feld (Dallas)
The FTC entered into a consent decree with Hospira Inc. and Mayne Pharma Ltd. on May 21, 2007 imposing divestitures on the firms prior to clearing their merger. The consent decree required Mayne to divest its current business in one type of generic pharmaceuticals, as well as the assets (...)

The US DOJ conditions the approval of a merger upon the divestiture of several fibers carrying local private telephone calls between buildings, a majority of which are owned or controlled by the merging telecommunications firms in 19 metropolitan areas (SBC / AT&T)
Jackson Walker (Dallas)
Editor’s Note: This article was written before the DOJ issued its Competitive Impact Statement on November 16, 2005 and before the FCC issued its Memorandum Opinion and Order on November 17, 2005. This article is based on the FCC’s press release of its decision to approve the mergers, the (...)

The US DOJ requires a partial divestiture of local private telephone fibers in 19 cities before clearing a merger between a popular incumbent local exchange carrier and a prominent long-distance carrier in the telecommunications industry (Verizon / MCI)
Jackson Walker (Dallas)
Editor’s Note: This article was written before the DOJ issued its Competitive Impact Statement on November 16, 2005 and before the FCC issued its Memorandum Opinion and Order on November 17, 2005. This article is based on the FCC’s press release of its decision to approve the mergers, the (...)

The US FTC requires an investing firm to relinquish voting rights for members of the board of directors and install an internal firewall before allowing the firm to acquire simultaneous interests in competing firms in gasoline terminaling services (Carlyle / Kinder Morgan)
U.S. Department of Justice (Washington)
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Willkie Farr & Gallagher (Washington)
On January 25, 2007, the Federal Trade Commission (the “FTC”) announced a complaint challenging the acquisition of a 22.6 percent equity interest in Kinder Morgan, Inc. (“KMI”) by The Carlyle Group (“Carlyle”) and Riverstone Holdings (“Riverstone”). Simultaneously, the FTC made public an order (...)

The US FTC imposes conduct remedies before allowing an investment firm to hold simultaneous interests in two competing firms in the market for terminaling services for gasoline (Carlyle / Kinder Morgan)
Hunton & Williams (Washington)
In a recent consent order, the Federal Trade Commission ("FTC") required remedies to address competitive concerns raised by the privatization of Kinder Morgan, Inc. ("KMI") by KMI management and a group of private investment firms. The investigation of this transaction was somewhat unusual (...)

The US FTC challenges, for the first time, private-equity firms acquiring a minority interest in one firm while holding a partial ownership interest in a rival firm and requires certain conduct remedies to protect competition in the market for gasoline terminaling services (Carlyle / Kinder Morgan)
Weil, Gotshal & Manges (Washington)
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Weil, Gotshal & Manges (Washington)
United States of America, Mergers, Competition Authority, Consent Order, Access to information, Anticompetitive effect, Barriers to entry, Coordinated effects, Geographic market, Prices increase, Unilateral effects, Vertical restrictions, Other services, National provision prohibiting (...)

The US FTC requires an investing firm to relinquish voting rights for members of the board of directors and install an internal firewall before allowing the firm to acquire simultaneous interests in competing firms in gasoline terminaling services (Carlyle / Kinder Morgan)
Weil, Gotshal & Manges (Washington)
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Weil, Gotshal & Manges (Washington)
The explosion of private-equity financing in global capital markets resulted in a record year for 2006. In that year alone, private- equity firms raised more than $400 billion, established over 600 new funds, and spent roughly $737 billion globally on buyouts. In addition, the wide- spread (...)

The U.S. FTC imposes conduct remedies, such as refraining from bringing suit against violations of its patents that were misrepresented to a standard-setting organization, before granting approval to a merger in the gasoline industry (Chevron/Unocal)
Covington & Burling (Washington)
On August 2, following a public comment period, the Federal Trade Commission approved the issuance of two consent orders that separately resolved (1) its 2003 monopolization complaint against Union Oil Company of California ( Unocal ) alleging anticompetitive abuses of the regulatory (...)

The US FTC employs an uncommon remedy to resolve the anticompetitive concerns of a merger-to-monopoly by requiring the merged firm to license a generic form of its breakthrough cancer pain drug to a third party (Cephalon/CIMA)
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BakerHostetler (Washington)
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Pillsbury Winthrop Shaw Pittman (New York)
In two recent decisions involving pharmaceutical mergers – Cephalon/Cima, in August 2004, and Genzyme/Novazyme, in January 2004, a divided Federal Trade Commission was accused by dissenting Commissioners of breaking with precedent and allowing acquisitions involving innovator pharmaceuticals (...)

The US FTC requires divestiture of three brand drugs in order to grant approval to a merger between two pharmaceutical companies (Sanofi-Synthelabo/Aventis)
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BakerHostetler (Washington)
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Pillsbury Winthrop Shaw Pittman (New York)
In two recent decisions involving pharmaceutical mergers – Cephalon/Cima, in August 2004, and Genzyme/Novazyme, in January 2004, a divided Federal Trade Commission was accused by dissenting Commissioners of breaking with precedent and allowing acquisitions involving innovator pharmaceuticals (...)

A US District Court rules that the second-largest software company can proceed with its proposed bid despite DoJ’s legal challenge (Oracle / Peoplesoft)
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Shearman & Sterling (Washington)
On September 9, 2004, a federal judge ruled that Oracle, the nation’s second-largest software company, could proceed with its hostile bid for PeopleSoft, handing the Department of Justice (“DOJ”) a significant defeat in a legal challenge to a corporate merger. DOJ had sought to block Oracle’s (...)

The US DOJ demands conduct remedies in the form of establishing firewalls and publishing non-discriminatory criteria before clearing the vertical merger between a satellite producer and a payload supplier (Northrop Grumman/TRW)
WilmerHale (Washington)
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WilmerHale (Washington)
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Stanford University
On December 11, 2002, the Department of Justice (DOJ) filed a proposed consent decree, permitting Northrop Grumman to proceed with its $7.8 billion acquisition of TRW. Northrop Grumman/TRW shows that the DOJ and the Department of Defense (DOD), which plays a leading role in reviewing (...)

The US DOJ approves a merger in defense industry subject to behavioral remedies (Northrop Grumman/TRW)
Stanford University
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WilmerHale (Brussels)
On December 11, 2002, the Department of Justice (DOJ) filed a proposed consent decree, permitting Northrop Grumman to proceed with its $7.8 billion acquisition of TRW. Northrop Grumman/TRW shows that the DOJ and the Department of Defense (DOD), which plays a leading role in reviewing defense (...)

The US FTC seeks divestiture of an exact copy of software, thereby resolving anticompetitive effects from a completed merger in the engineering software industry (MSC / UAI / CSAR)
Akin Gump Strauss Hauer & Feld (Dallas)
On August 14, 2002, the FTC announced that MSC Software Corporation had agreed to enter into a consent settlement, resolving concerns that arose after MSC acquired Universal Analytics, Inc. (“UAI”) and Computerized Structural Analysis & Research Corp. (“CSAR”) in 1999. The FTC determined that (...)

The US FTC imposes divestiture of assets for one product and licensing of patents for two other products prior to approving a merger in the pharmaceuticals industry (Amgen / Immunex)
Akin Gump Strauss Hauer & Feld (Dallas)
Amgen Inc. and Immunex Corporation entered into a consent decree with the FTC on September 3, 2002 in order to proceed with the merger of the two pharmaceutical giants. To obtain clearance from the FTC, Amgen and Immunex agreed to divest Immunex’s business concerning the production of one (...)

The U.S. FTC votes to file a complaint in federal court after discovering a merged firm’s failure to provide complete clearance paperwork in an HSR filing and subsequent price increases after a merger in the market for pharmaceutical databases (Hearst/Medi-Span)
Axinn Veltrop & Harkrider (New York)
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Axinn Veltrop & Harkrider (Hartford)
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Axinn Veltrop & Harkrider (New York)
On April 4, 2001, the Federal Trade Commission (“FTC”) took the unusual step of voting to file a complaint in the United States District Court for the District of Columbia against The Hearst Trust, its subsidiary The Hearst Corporation, and First DataBank, a wholly owned subsidiary of The (...)

The US FTC collects significant penalties for violations of the pre-merger notification rules after clearing a merger in the market for electronic integratable drug information databases (Hearst / Medi-Span)
Hughes Hubbard & Reed (New York)
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Law Office of Renee C. Redman
It is, of course, too early to tell conclusively whether, and to what extent, antitrust enforcement by the Federal Trade Commission (FTC) and the United States Department of Justice (DOJ) will change under the new Bush administration. Both agencies have indicated that they do not intend to (...)

The US DoJ requires the merging parties to divest helicopter engine business and to authorize a new third-party to provide the service for certain models of aircraft engines and APUs (Honeywell / GE)
Leroy Merlin
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US Federal Trade Commission (FTC) (Washington)
A Merger Denied, 13 years later: The GE/Honeywell Saga* Through COMESA, a regional organization on which this resource has published extensively, African countries have made a significant foray into cross-border merger control. As the world’s competition regimes continue to proliferate, a (...)

The US FTC imposes a host of conduct remedies, regulating business operations and reporting obligations, to prevent the exclusion of other competitors resulting from a vertical merger in the internet and cable industries (AOL / Time Warner)
Wachtell Lipton Rosen & Katz (New York)
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Hogan Lovells (Washington)
AFTER THE PUBLICATION OF OUR article, Antitrust Review of New Economy Acquisitions, in the Fall 2000 issue of this magazine, the federal antitrust authorities continued to leave their mark on the developing new economy. Two subsequent consent decrees—AOL-Time Warner and WorldCom-Intermedia— (...)

The US FTC imposes the largest retail divestiture of its history, affecting multiple levels of the production chain, before clearing one of the largest mergers in the gasoline industry (Exxon / Mobil)
Akin Gump Strauss Hauer & Feld (Dallas)
On November 30, 1999 after an extensive and in-depth investigation, the FTC announced that Exxon Corporation and Mobil Corporation agreed to enter into a consent decree, in which the FTC mandated significant structural changes to the corporations prior to approving their merger. The consent (...)

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