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Gun jumping

Mergers

The DOJ condemns pre-merger coordination requiring target company to sell factory (Flakeboard America / SierraPine)
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 (New York)
On November 7, 2014, the United States Department of Justice, Antitrust Division (DOJ) announced a $5 million agreement to settle charges that Flakeboard and SierraPine had engaged in unlawful pre-merger coordination . The DOJ’s complaint alleged that the parties’ conduct constituted both a per (...)

The German merger control regime’s main features in light of recent developments
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer
In over 35 years of its existence, the German merger control regime has gained a strong reputation all over the world due to its influential role in post-war Europe, high rate of enforcement and the important place held by the competition authority in charge of its enforcement, the (...)

The Polish Competition Authority imposes a fine of more than EUR 78,000 on a consumer eggs producer for gun-jumping (Fermy Drobiu Woźniak)
WKB Wierciński Kwieciński Baehr (Warsaw)
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WKB Wierciński Kwieciński Baehr (Warsaw)
In its decision of 19 September 2017, the Polish Competition Authority (Prezes Urzędu Ochrony Konkurencji i Konsumentów, hereinafter referred to as the “PCA”) fined Fermy Drobiu “Woźniak” sp. z o.o. (hereinafter referred to as the “FDW”) the amount of PLN 339,000.00 (approx. EUR 78,000.00) for failure (...)

The EU Commission sends statements of objection to three undertakings regarding possible breach of EU merger procedural rules (Merck / Sigma-Aldrich, General Electric / LM Wind and Canon / Toshiba)
European Commission - DG COMP (Brussels)
Mergers: Commission alleges Merck and Sigma-Aldrich, General Electric, and Canon breached EU merger procedural rules* The Commission has sent three separate Statements of Objections to Merck and Sigma-Aldrich, General Electric and Canon alleging they breached EU merger rules: General Electric, (...)

The Polish Competition Authority imposes a fine of more than EUR 124,000 for gun-jumping (Bać-Pol)
WKB Wierciński Kwieciński Baehr (Warsaw)
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WKB Wierciński Kwieciński Baehr (Warsaw)
In its decision of 5 June 2017, the Polish Competition Authority (Prezes Urzędu Ochrony Konkurencji i Konsumentów, the “PCA”) fined Bać-Pol S.A. PLN 527,000.00 (approx. EUR 124,000.00) for failure to notify of the takeover of a portion of assets of another company called Klementynka. The PCA (...)

The EU Commission sends a statement of objections to a company to investigate whether a merger was implemented prior to the Commission’s clearance (Altice)
Shearman & Sterling (London)
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Shearman & Sterling (Brussels)
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Shearman & Sterling (Brussels)
When a transaction meets the thresholds of the EU Merger Regulation, companies must notify and obtain clearance from the European Commission before implementing the transaction. This means that until clearance is obtained, companies should continue to operate independently (including (...)

The Chinese MOFCOM rules that a foreign-to-foreign deal "jumped the gun" in breach of antitrust rules (Canon / Toshiba Medical Systems)
Hogan Lovells (Beijing)
MOFCOM rules that foreign-to-foreign deal "jumped the gun" in breach of antitrust rules* In a decision adopted on 16 December 2016 and made public on 4 January 2017, the Chinese Ministry of Commerce (“MOFCOM“) fined Japanese company Canon for failure to file its acquisition of Toshiba Medical (...)

The Danish Maritime and Commercial Court requests the EU Court of Justice to provide guidance on gun-jumping test (Ernst & Young / KPMG)
Gorrissen Federspiel (Copenhagen)
CJEU requested to provide guidance on gun-jumping test* With Post Danmark I and II under their belts, it seems Danish courts are punching above their weight when it comes to contributing to the CJEU’s development of EU competition law through preliminary rulings. Yet another interesting (...)

The French Competition Authority fines a group and its recently-acquired subsidiaries 80 M € for having coordinated their business strategies and commercial behaviour prior to merger control clearance (Altice)
Hogan Lovells (Paris)
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Hogan Lovells (Paris)
This article was first published in Concurrences Review N° 2-2017, Art. N° 83875, pp. 231-239 I. Introduction In November 2016, the French Competition Authority (“FCA”) fined French-based Altice/Numericable group and its recently-acquired telecom subsidiaries SFR and Virgin Mobile France for (...)

The French Competition Authority publishes its long awaited first decision sanctioning gun jumping practices (Altice / SFR / Virgin)
DLA Piper (Paris)
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DLA Piper (Paris)
In its decision dated 8 November 2016, the French Competition Authority (FCA) describes with much detail its appraisal of a gun jumping infringement. Among the many lessons arising from such decision, one is clearly for future redactors of corporate documentation, another is for top management (...)

The French Competition Authority fines companies for gun-jumping (Altice)
Van Bael & Bellis (Brussels)
On 8 November 2016, the French Competition Authority (FCA) fined Altice (trading as Numericable) and SFR Group € 80 million for the coordination of commercial behaviour prior to obtaining French merger control clearance. The FCA decision is ground-breaking as it imposes the highest fine ever in (...)

The French Competition Authority fines a multinational telecoms company for the premature completion of two mergers (Altice)
French Competition Authority (Paris)
The Autorité de la concurrence fines the Altice group 80 million euros for the premature completion of two mergers notified in 2014* The Autorité de la concurrence issued a decision today to fine jointly Altice Luxembourg and SFR Group 80 million euros, in application of Section II of Article (...)

The French Competition Authority fines a major French telecommunications operator for gun-jumping (Altice)
Jones Day (Brussels)
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Jones Day (Paris)
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Jones Day (Paris)
This week, the French Competition Authority ("FCA") imposed a EUR 80 million fine on the Altice Group, a major French telecommunications operator, for implementing two transactions before approval by the FCA (so-called "gun jumping"). The full text is not yet available, but this decision (...)

The Danish Competition and Consumer Authority refers its first gun-jumping case to the public prosecutor (KPMG / EY)
Gorrissen Federspiel (Copenhagen)
First Danish gun jumping case referred to the public prosecutor* On 11 June 2015 the Danish Competition and Consumer Authority (DCCA) reported Ernst & Young Europe LLP (EY) to the public prosecutor for pre-implementing the merger with the former Danish KPMG member firm (KPMG Denmark). EY (...)

The Brazilian Administrative Council for Economic Defense issues guidelines on gun jumping
Mattos Filho Veiga Filho Marrey Jr & Quiroga (New York)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
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Mattos Filho, Veiga Filho, Marrey Jr. & Quiroga (Sao Paulo)
On May 20, 2015, the Administrative Council for Economic Defense (“CADE”) issued guidelines on gun jumping (“Guidelines”). These Guidelines are not binding on parties involved in transactions that require antitrust approval in Brazil, but they serve as an important guidance for companies and (...)

The Competition Commission of India approves an acquisition pursuant to a shareholders Agreement (Zuari / Mangalore Fertilisers)
Economic Laws Practice
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Economic Laws Practice
Introduction The Competition Commission of India (“CCI”) has approved the acquisition of Zuari Fertilisers and Chemicals Limited (“ZFCL”); and (b) Zuari Agro Chemicals Limited (“ZACL”), together referred to as the “Acquirers”, in Mangalore Chemicals and Fertilisers Limited (“MCFL”), pursuant to a (...)

The Indian antitrust regulator fines parties for gun jumping (Zuari Fertilisers and Chemicals and Zuari Agro Chemicals)
Lakshmikumaran & Sridharan (New Delhi)
The Competition Act, 2002 (“Act”) read with the attendant Combination Regulations provide for a mandatory notification of the transaction to the Competition Commission of India (“CCI”) provided that threshold limits provided under the Act are met (“combination”). The Act provides for a suspensory (...)

The Romanian Competition Council clears a merger in the banking sector although the parties have realized the merger before clearance (Transilvania Bank / Volksbank Romania)
Romanian Competition Council (Bucharest)
Transilvania Bank can involve in the activity of Volksbank Romania* The Competition Council issued a derogation decision from the provisions of the Competition Law so that Transilvania Bank to involved in the activity of Volksbank Romania and Volksbank Services Romania before obtaining the (...)

The Danish Competition and Consumer Authority holds that companies have pre-implemented a merger under scrutiny, leading to the first case of gun jumping (KPMG / EY)
Gorrissen Federspiel (Copenhagen)
First case on gun jumping in Denmark* By terminating the agreement with KPMG International on the day of signing an agreement to join EY, KPMG Denmark pre-implemented the merger between KPMG Denmark and EY that the Danish Competition and Consumer Authority (DCCA) ruled in December 2014. It is (...)

The Stockholm District Court blocks an already completed merger for the first time (Swedbank Franchise / Svensk Fastighetsförmedling)
Vinge (Stockholm)
Historic court victory for Swedish Competition Authority* Stockholm District Court blocks the already completed takeover by Swedbank Franchise of Svensk Fastighetsförmedling Sweden’s first court judgment blocking a merger is a major victory for the Swedish Competition Authority. The court’s (...)

The US DOJ requires disgorgement for gun-jumping violations in abandoned transaction (Flakeboard America / SierraPine)
Kirkland & Ellis (New York)
On November 7, 2014, the U.S. Department of Justice, Antitrust Division (“DOJ”) announced that it had entered into a settlement with Flakeboard and SierraPine resolving allegations that the two parties had engaged in illegal premerger coordination in connection with their now-abandoned (...)

The US DOJ announces a proposed $4.95 million settlement for alleged “gun-jumping” while the parties’ proposed transaction was under antitrust review (Flakeboard America / SierraPine)
O’Melveny & Myers (Washington)
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O’Melveny & Myers (Washington)
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O’Melveny & Myers (Washington)
On November 7, 2014, the Antitrust Division of the U.S. Department of Justice (“DOJ”) announced a proposed $4.95 million settlement with Flakeboard America Limited, its parent companies Celulosa Arauco y Constitución S.A. and Inversiones Angelini y Compañía Limitada (collectively, “ Flakeboard”), (...)

The US DOJ reaches $5 millions settlement with companies after allegations of premerger coordination (Flakeboard America / SierraPine)
Wolters Kluwer (Riverwoods)
U.S. Premerger Coordination Allegations Settled for $5 Million in Civil Penalties, Disgorgement* The dangers of prematurely exercising operational control over an acquisition target, or at least appearing to operate organizational control, are highlighted by a Department of Justice Antitrust (...)

The Competition Commission of India takes action against gun-jumping by airlines (Etihad / Jet Airways)
Economic Laws Practice
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Economic Laws Practice
1. Introduction 1.1. The Competition Commission of India (CCI), while approving the acquisition of 17.36% post issue equity share capital of Standard Greases & Specialties Private Limited (SGSPL) by Alpha TC Holdings Pte Limited (Alpha TC Holdings) and Tata Capital Growth Fund I (TCGF I), (...)

The EU Commission fines a leading company in salmon farming €20 million for breaching the standstill obligation and failing to meet notification requirements (Marine Harvest / Morpol)
European Commission - DG COMP (Brussels)
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European Commission - DG COMP (Brussels)
Article originally published in DG Competition’s Competition merger brief, as Competition merger brief 1/2014 (click here), under the title "Harvesting salmon, jumping guns: the Marine Harvest early implementation case". Please note that all articles published in the CPN are subject to a (...)

The Indian Competition Authority fines two tour operators for gun jumping (Thomas Cook and Sterling)
Platinum Partners
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Platinum Partners
On 21 May 2014, the Competition Commission of India (“CCI”) imposed a penalty of INR 1 million (approximately USD 0.16 million) on Thomas Cook (India) Limited (“TCIL”), Thomas Cook Insurance Services (India) Limited (“TCISIL”) and Sterling Holidays Resorts (India) Limited (“Sterling”), for (...)

The Chinese MOFCOM announces new penalties for companies that fail to notify mergers
General Court of the European Union (Luxembourg)
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White & Case (Brussels)
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White & Case (Stockholm)
MOFCOM Shows Teeth Against Gun Jumping* Summary On 20 March 2014, the Ministry of Commerce of the People’s Republic of China (“MOFCOM”) issued a notice announcing that it will make public decisions sanctioning companies failing to notify mergers that meet the filing thresholds. The notice further (...)

The Irish Competition Authority clears an acquisition of certain assets partly implemented prior to clearance on the market for crisps and snacks (Top Snacks & KP Snacks)
Irish Competition Authority
Acquisition by Top Snacks Limited of the KP Snacks business from United Biscuits (UK) Limited* Publication of the Determination The Authority has published on its website the public version of the full text of its Determination concerning the proposed transaction whereby Intersnack (...)

The Irish Competition Authority unconditionally clears an acquisition in the food sector after a phase 2 investigation (Top Snacks/KP Snacks)
Matheson (Dublin)
Introduction On 18 December 2012, the proposed acquisition of KP Snacks by Top Snacks Limited (“Top Snacks”) was notified to the Competition Authority (the “Authority”) pursuant to section 18 of the Competition Act 2002 (the “Act”). The seller of the KP Snacks business was United Biscuits (UK) (...)

The Lithuanian Competition Authority fines petrol stations operator for infringement of merger control rules (Lukoil)
Valiunas Ellex (Vilnius)
The Competition Council of the Republic of Lithuania (the ’Council’) imposed a fine of approximately EUR 340 000 on UAB Lukoil Baltija (Lukoil), a petrol stations operator, for the failure to duly notify the Council of two notifiable concentrations and for the implementation thereof without the (...)

The Albanian Competition Authority fines companies for gun-jumping and failure to notify (Viloil, Geci, Media Vision, Alpha Bank/Emporiki Bank of Greece)
Këllezi Legal (Geneva)
The Albanian Competition Authority recently fined several companies for failure to notify a transaction and for late filing. The fines still remains symbolic at an amount not exceeding EUR 1’000; however, the number of decisions shows a trend in enforcement policy. On 5 February 2013, an (...)

The Portuguese Competition Authority imposes record fine for gun-jumping (Farminveste)
Van Bael & Bellis (Brussels)
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Van Bael & Bellis (Brussels)
At the end of December 2012, the Portuguese Competition Authority fined the Portuguese National Pharmacy Association and two subsidiaries of Portuguese company Farminveste € 150,000 for implementing their acquisition of pharmaceutical company ParaRede-Glintt without obtaining prior merger (...)

The Spanish National Court annuls a merger control clearance decision because the notification thresholds were not reached (Consenur / Ecotec)
Baker McKenzie (Madrid)
The Spanish National Court (Audiencia Nacional, "AN") adopted a judgment on 19 September 2012 annulling the Decision of the Spanish National Competition Commission (Comisión Nacional de la Competencia, "CNC") of 10 March 2010 that authorised the concentration consisting in the acquisition by (...)

The Dutch Trade and Industry Appeal Tribunal confirms that the Competition Authority was wrong to fine a seller for failing to notify a transaction in time
Simmons & Simmons (Amsterdam)
The Trade and Industry Appeal Tribunal (College van Beroep voor het bedrijfsleven, the highest administrative court in the Netherlands) has ruled that the Dutch Competition Authority’s (NMa) standard practice of imposing fines on both the purchaser and the seller where a concentration subject to (...)

The Spanish National Competition Commission fines companies for gun jumping based on an unprecedentedly broad concept of control (Gestamp/ Essa Bonmor)
Cuatrecasas, Goncalves Pereira (Madrid)
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Cuatrecasas, Goncalves Pereira (Barcelone)
On January 30, 2012, the Spanish Competition Commission (Comisión Nacional de la Competencia, “CNC”) imposed fines of €124.400 on two groups in the automotive components sector, Gestamp and Estampaciones Sabadell, for allegedly executing a notifiable concentration without authorization. The CNC (...)

The German Competition Authority imposes fine for gun-jumping (ZG Raiffeisen)
Van Bael & Bellis (Brussels)
According to a press release of 28 January 2011, the German Federal Cartel Office imposed a fine of € 414,000 on agricultural cooperative ZG Raiffeisen for implementing a concentration without first obtaining clearance from the Cartel Office. In particular, the Cartel Office held that the May (...)

A US Court of Appeals rejects antitrust lawsuit that challenged premerger planning and information exchanges between two health insurers (Omnicare/UnitedHealth)
Jones Day (Washington)
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Jones Day (Houston)
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. Last week the U.S. Court of Appeals for the Seventh Circuit rejected an antitrust lawsuit by institutional pharmacy (...)

The Austrian Cartel Court imposes fine for gun-jumping
Van Bael & Bellis (Brussels)
According to a press release of the Austrian Competition Authority of 22 June 2010, the Austrian Cartel Court has imposed a fine of € 5,000 on a company belonging to an international group of companies that had put a concentration into effect without prior notification to the Austrian (...)

The US DoJ settles Hart-Scott-Rodino gun jumping charges stemming from buyer’s pre-approval of target’s purchasing contracts (Smithfield Foods / Premium Farms)
Skadden, Arps, Slate, Meagher & Flom (Washington)
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Kirkland & Ellis (New York)
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Skadden, Arps, Slate, Meagher & Flom (New York)
On January 21, 2010, after a three-year and four-month investigation, the Department of Justice (DOJ) announced a $900,000 settlement with meat processors Smithfield Foods Inc. and Premium Farms LLC to resolve DOJ allegations that Smithfield exercised operational control over Premium (...)

The US DOJ imposes civil penalties for premerger "Gun Jumping" (Smithfield Foods, Premium Standard Farms)
Jones Day (Houston)
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Jones Day (Washington)
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Jones Day (Washington)
On January 21, 2010, the Department of Justice Antitrust Division (“DOJ”) announced a consent agreement with Smithfield Foods and Premium Standard Farms requiring the companies to pay $ 900,000 for violating Hart-Scott-Rodino (“HSR”) Act premerger waiting period requirements. The DOJ alleged that (...)

The Romanian Competition Council carries out dawn raid on suspicion of “gun-jumping” infringement (Advent, Ozone Laboratories)
Van Bael & Bellis (Brussels)
According to a press release of 19 November 2009, the Romanian Competition Council carried out unannounced inspections (so-called “dawn raids”) at the premises of Advent and Ozone Laboratories, in the framework of its investigation of a notified merger between these two companies. Although the (...)

The EU Commission imposes a twenty million euros fine against Belgian electricity supplier for failure to notify a merger (Electrabel / CNR)
Linklaters (Hong Kong)
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Cadwalader Wickersham & Taft (Brussels)
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Bird & Bird (Brussels)
On 10 June 2009, the European Commission (EC) imposed a fine of € 20 M on Belgian electricity supplier Electrabel for implementing a merger without seeking its prior approval, in breach of the EC Merger Regulation (ECMR). This decision merits attention not only because it is one of only a (...)

The German FCO fines publishing company € 4.13 M for gun-jumping (DuV)
Van Bael & Bellis (Brussels)
According to a press release of 13 February 2009, the German Federal Cartel Office (FCO) fined German publishing company Druck- und Verlagshaus Frankfurt am Main GmbH (DuV) € 4.13 million for implementing a concentration prior to obtaining clearance (i.e., so-called “gun-jumping”). In 2001, DuV (...)

The German Cartel Office imposes "Gun Jumping" fine against a leading U.S. candy manufacturer for failure to comply with German premerger notification (Mars, Nutro Products)
Jones Day (Frankfurt)
In a highly unusual decision for Germany’s Federal Cartel Office (FCO), on December 15, 2008, the agency imposed a fine of € 4.5 M against U.S. company Mars, Inc. for violating the bar to closing in Germany pending the completion of the German merger review process. This is the first such fine (...)

The German Cartel Office imposes "Gun Jumping" fine against a leading U.S. candy manufacturer for failure to comply with German premerger notification (Mars, Nutro Products)
Jones Day (Frankfurt)
In a highly unusual decision for Germany’s Federal Cartel Office (FCO), on December 15, 2008, the agency imposed a fine of € 4.5 M against U.S. company Mars, Inc. for violating the bar to closing in Germany pending the completion of the German merger review process. This is the first such fine (...)

The German Federal Court confirms that a change of control must occur on a lasting basis in order to be qualified as a “concentration” but leaves open the question which actions can constitute “gun-jumping” infringements (G+J/RBA)
Freshfields Bruckhaus Deringer (Berlin)
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Freshfields Bruckhaus Deringer
With its judgment of 11 November 2008, the German Federal Court of Justice (Bundesgerichtshof) (Federal Court) has opened a new chapter in the never ending judicial saga relating to the German edition of the scientific magazine National Geographic, which has already found itself at the centre (...)

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 (...)

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 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 European Commission prohibits a proposed acquisition after an in-depth investigation in the markets for aero-engines, avionics and other aircraft components and systems (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 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 (...)

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