US Mergers in IT

Mergers

Oregon and Delaware Courts differ on enforceability of unilaterally adopted forum selection bylaws in a merger case (Micro Devices, TriQuint Semiconductor)
White & Case (New York)
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White & Case (New York)
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White & Case (New York)
While forum selection bylaws have become increasingly popular with US public companies, courts in Delaware and Oregon recently came to opposite conclusions on whether such bylaws, when unilaterally adopted by a board of directors concurrently with the approval of a merger transaction, should (...)

The US Department of Justice prohibits a merger between the two leading providers of ratings and reviews platforms that resulted in the elimination of meaningful competition in that sector, despite the fact that the transaction was non reportable (Bazaarvoice / PowerReviews)
White & Case (Washington)
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White & Case (Washington)
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White & Case (New York)
If you thought not having to report your proposed acquisition to the US Department of Justice and the US Federal Trade Commission meant never worrying about antitrust issues, think again. The DOJ’s recent pursuit of Bazaarvoice, Inc. in connection with its acquisition of PowerReviews, Inc. (...)

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 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 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 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 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 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 clears acquisition involving standards-essential patents relevant to wireless devices (Google / Motorola Mobility)
Stanford University - Stanford Law School
U.S. DOJ clears Google’s acquisition of Motorola Mobility and other transactions involving standards-essential patents* On 13 February 2012 the U.S. Department of Justice (“DOJ”) announced the closing of investigations concerning the acquisition of Motorola Mobility Holdings Inc. (“Motorola (...)

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 EU Commission blocks a merger due to its potential effect on European financial derivatives traded on the stock exchange (NYSE Euronext / Deutsche Börse)
Mayer Brown (Paris)
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Greenberg Traurig (London)
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Mayer Brown (Brussels)
On 1st February 2012, the European Commission adopted its decision prohibiting the USD 10.2 billion merger between Deutsche Börse (DB) and NYSE Euronext (NYSE). The decision is notable not the least because it is rare for the Commission to block a merger. Only 21 have been blocked compared (...)

The EU Commission blocks proposed merger of stock exchange groups as it would create a quasi-monopoly in the European exchange-traded derivatives industry (NYSE Euronext / Deutsche Börse)
Wolters Kluwer (Riverwoods)
Deutsche Börse and NYSE Euronext Blame “Narrow” Market Definition for EC’s Objection to Combination* Despite a U.S. Department of Justice decision to clear the deal, the European Commission (EC) today blocked the proposed merger of NYSE Euronext and Deutsche Börse. The EC determined that the (...)

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 issues statements regarding the abandonment of a proposed acquisition in the mobile wireless telecommunications industry (AT&T/T-Mobile)
University of Berkeley
AT&T officially ends plans to acquire T-Mobile USA* As a reaction to the DOJ’s antitrust actions AT&T has now officially abandoned its plans to acquire T-Mobile USA for approx. $ 39 billion. In a news release from the 19th December 2011 AT&T said, that “after a thorough review of (...)

The US DoJ closes its investigation and gives green light to $400 M acquisition in the advertising display industry (Google/Admeld)
Sidley Austin (Brussels)
DOJ closes investigation into Google’s acquisition of Admeld Inc.* On December 2, 2011 the DOJ announced its decision to close the investigation into Google’s acquisition of Admeld Inc. allowing Google to complete its $ 400 million merger. The DOJ’s investigation focused on the potential (...)

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 District Court for the District of Columbia blocks a merger in the digital do-it-yourself tax preparation software industry providing insights on evidence to use on S. 7 challenge (H&R Block / TaxAct)
Skadden, Arps, Slate, Meagher & Flom (New York)
United States v. H&R Block: The DOJ Invokes Brown Shoe to Shed the Oracle Albatross* On November 10, 2011, the U.S. Department of Justice won its first fully litigated merger challenge since its 2004 defeat in United States v. Oracle Corp. In the interim, the Federal Trade Commission had (...)

The US District Court for the District of Columbia grants DoJ request to enjoin a merger between two digital do-it-yourself tax preparation software providers (H&R Block / TaxAct)
Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
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Skadden, Arps, Slate, Meagher & Flom (Palo Alto)
This article has been nominated by the Business Steering Committee for the business category, mergers section of the 2012 Antitrust Writing Awards. Click here to learn more about the Antitrust Writing Awards. On October 31, 2011, the U.S. District Court for the District of Columbia is sued (...)

A US district court stops a merger between two digital do-it-yourself tax preparation software providers as the proposed combination would have likely led to a lessening of competition in the relevant market (H&R Block / TaxAct)
United Nations Development Programme (UNDP)
DOJ prevents H&R block acquisition as epic battle with AT&T looms* In what may be one of the more ironic uses of taxpayer-funded litigation, the DOJ scored an important victory by preventing tax-prep software company H&R Block’s acquisition of its competitor - TaxAct. U.S. District (...)

A US federal district court prohibits proposed combination of tax software makers as it violates S. 7 of the Clayton Act (H&R Block / TaxAct)
Wolters Kluwer (Riverwoods)
Proposed Combination of Tax Software Makers Violates Section 7 of the Clayton Act* The federal district court in Washington, D.C. yesterday released its Memorandum Opinion explaining its October 31 order enjoining H&R Block, Inc.’s proposed acquisition of 2SS Holdings, Inc.—the maker of (...)

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 demands conduct remedies from two strong competitors in related markets before approving a vertical merger that will allow the combined company to enter into the online travel search market (Google / ITA)
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 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 (...)

The US DoJ announces challenge to proposed combination of two of the four largest providers of mobile wireless telecommunications services (AT&T/T-Mobile)
Wolters Kluwer (Riverwoods)
AT&T’s Planned Acquisition of T-Mobile Challenged by Justice Department* The U.S. Department of Justice today moved to block AT&T Corporation’s proposed acquisition of T-Mobile USA Inc. According to the Justice Department, the proposed acquisition would combine two of the four largest (...)

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 and FTC issue new merger guidelines suggesting increased focus on deals in high tech and pharmaceutical sectors
Gibson Dunn (New York)
New U.S. Merger Guidelines Suggest Increased Focus on Deals in High Tech and Pharmaceutical Sectors* In August 2010, the U.S. antitrust agencies released the final version of their revised Horizontal Merger Guidelines, which they use to analyze the competitive implications of mergers between (...)

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 (...)

A US District Court grants FTC request for preliminary injunction to block a 3-2 transaction in the market for electronic systems used to estimate the cost of collision repairs (CCC Holdings / Aurora Equity Partners)
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 (Washington)
On March 18, 2009, Judge Collyer of the United States District Court for the District of Columbia released the public version of a significant opinion supporting her order granting the FTC a preliminary injunction in connection with the proposed $1.4 billion merger of CCC Information Systems (...)

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 settles gun-jumping charges against communication technology companies (Qualcomm / Flarion)
Skadden, Arps, Slate, Meagher & Flom (Palo Alto)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On April 13, 2006, the Department of Justice (“DOJ”) announced that it had reached a $1.8 million settlement with Qualcomm Incorporated and Flarion Technologies, Inc. to resolve allegations that they each violated the Hart-Scott-Rodino Act of 1976 (“HSR Act”) by “jumping the gun” in connection with (...)

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 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 DOJ fines two US software companies for improperly coordinating their actions before closing of the merger in violation of the HSR Act and Section 1 of the Sherman Act (CA/Platinum)
WilmerHale (Washington)
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Stanford University
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WilmerHale (Brussels)
The Department of Justice has just brought a case that should cause merging parties to take even greater precautions to ensure they do not improperly coordinate before closing. The DoJ complaint alleges violations both of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) and of (...)

The US FTC prevents the closing of a merger between two major online job boards and suggests that relevant market is limited to online job services (Monster/Hotjobs)
WilmerHale (Washington)
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Williams & Connolly
In June 2001, TMP Worldwide, owner of the dominant online job board “Monster.com,” agreed to purchase the second largest online job board, “HotJobs.” Rather than permitting the merger to go forward as scheduled, the Federal Trade Commission (“FTC”) prevented the closing indefinitely until the parties (...)

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 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— (...)

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