Archives: Merger

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The FTC Is Looking You Up and Down(stream): Insights From the Acting Director of the Bureau of Competition on Antitrust Enforcement for Vertical Mergers

Photo of Bill DeVinneyBy Bill DeVinney on Posted in FTC, Merger
Since Assistant Attorney General Delrahim’s inaugural remarks on vertical mergers (covered here), the business press has been atwitter about the antitrust enforcement agencies’ views of those mergers. Bruce Hoffman, the acting director of the Federal Trade Commission Bureau of Competition, recently delivered a speech explaining that the FTC will continue to review vertical mergers as … Continue Reading

The ‘Failing Firm’ Defense and How Not to Lose It, Article Explains

Photo of BakerHostetlerBy BakerHostetler on Posted in Articles, Merger, Merger Review
Law360 featured an insightful article today on a recently unsealed court opinion blocking the $367 million merger of rival nuclear waste processing companies. The court blocked the merger, while rejecting the parties’ argument that the deal should be approved because otherwise the acquired firm would collapse and the market would suffer. The merging companies did not … Continue Reading

FTC Brushes Aside AG, Regulators to Attack Local Hospital Merger

Photo of Carl HittingerPhoto of Jeffry DuffyBy Carl Hittinger and Jeffry Duffy on Posted in Healthcare, Merger
The Federal Trade Commission (FTC) continued its relentless focus on combinations in the healthcare industry last month when it filed an administrative complaint challenging a merger of two West Virginia hospitals, In the Matter of Cabell Huntington Hospital (FTC Docket No. 9366). Given the FTC’s recent successes in thwarting other healthcare mergers it saw as … Continue Reading

FTC’s Appellate Win Reflects Focus on Health Care Consolidation

Photo of Carl HittingerBy Carl Hittinger and Mitchell Oates on Posted in Antitrust Litigation, Articles, FTC Act, Healthcare, Merger
In an important victory for the Federal Trade Commission in the appellate courts, the U.S. Court of Appeals for the Ninth Circuit recently affirmed last year’s decision from the District of Idaho in Saint Alphonsus Medical Center v. St. Luke’s Health System, No. 14-35173, in which the FTC successfully sued to undo a 2012 merger … Continue Reading

To Report or Not to Report, That Is the CFIUS Question

Photo of Danyll FoixBy Danyll Foix on Posted in CFIUS, Government Investigations, Merger, Merger Review, Premerger Notification
With the complexities inherent in many cross-border transactions – from cultural differences to the growing number of competition authorities demanding paperwork – the last thing one may want to think about is whether to submit a voluntary report of a transaction to the Committee on Foreign Investment in the United States (CFIUS). The recent decision … Continue Reading

“And they’re closing all the factories down”* — Going Dark During a Merger Review

By Jonathan Lewis on Posted in Merger, Merger Review
Demand in your industry has been declining for years, the decline is projected to continue for the foreseeable future, and you are one of the few cost-effective manufacturers around. You just inked a deal to buy a competing manufacturer, and you are working hard to get your deal cleared through the merger review process. But … Continue Reading

Gone, Gone, the Damage Done*—Provisions in Transactional Agreements Can Raise Antitrust Risk

By Jonathan Lewis on Posted in Merger
Soon after someone settles “gun jumping” charges, client alerts and blog posts with informative titles like “DOJ Settlement Resolves ‘Gun Jumping’ Charges” start flying around. These “alerts” and “posts” usually recite facts alleged in a DOJ complaint and then say certain conduct is fine (pre-closing integration planning under the watchful eye of an antitrust lawyer, … Continue Reading

What is the CFIUS: Information to Know When Doing Transactions with Foreign Parties

Photo of Danyll FoixBy Danyll Foix on Posted in CFIUS, Government Investigations, Merger, Merger Review, Premerger Notification
U.S. Senator Debbie Stabenow’s recent and much publicized unveiling of legislation to expand the CFIUS review process of transactions likely caused businesspeople everywhere to ask: “What’s the CFIUS?” In short, the Committee on Foreign Investment in the United States (“CFIUS”), comprised of high-level Washington bureaucrats, reviews certain domestic transactions involving foreign parties and determines or recommends … Continue Reading

Dollar General—“Setting the Record Straight” on Antitrust for Family Dollar

By Jonathan Lewis on Posted in FTC Act, Government Investigations, Merger, Merger Review
Unless you have been in the middle of a bidding war where antitrust concerns are front and center, what is playing out between Dollar General and Family Dollar is probably unfamiliar to you, as it is rarely seen outside of the boardroom. To get you up to speed, back in July Family Dollar agreed to be acquired … Continue Reading

Let The Rejoicing Begin, Or Not—Massachusetts AG’s Settlement With Partners Healthcare Is No Harbinger of Things to Come

By Jonathan Lewis on Posted in Government Investigations, Healthcare, Merger, Merger Review
After almost half a dozen years of investigating Partners HealthCare’s (“Partners”) contracting practices and its proposed acquisitions of two competing hospital systems, Massachusetts Attorney General Martha Coakley announced a “final resolution” that she says “will fundamentally alter [Partners’] negotiating power for 10 years and control health costs across [Partners’] entire network.”  But before you run … Continue Reading

To Report, or Not to Report, Your Non-Reportable Transaction Is the Question

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Merger, Merger Review, Premerger Notification
Just because a proposed transaction does not have to be reported in advance to the Department of Justice (“DOJ”) or the Federal Trade Commission (“ FTC”) because it falls below the Hart-Scott-Rodino (“HSR”) Act size of transaction threshold (currently$75.9 million), you are not out of the woods.  The growing list of companies defending antitrust challenges … Continue Reading

Sometimes Merger Fixes Are as Close as the End of Your Nose

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Merger, Merger Review
When it comes to negotiating merger remedies with federal antitrust enforcement agencies, the Department of Justice and the Federal Trade Commission each have guides or statements that may help.  But as good as their guidance may be, sometimes the fix for a merger is as close as the end of your nose. Back on July … Continue Reading

FTC Victory in Idaho Hospital-Physician Acquisition Case Should be a Wake-Up Call for Future and Past Deals

By Jonathan Lewis and Lee Simowitz on Posted in Antitrust Litigation, BakerHostetler, Government Investigations, Healthcare, Merger
The ink is still drying on the Idaho federal district court’s order requiring St. Luke’s Health System (“St. Luke’s”) to unwind its acquisition of Saltzer Medical Group (“Saltzer”) – a for-profit, physician-owned, multi-specialty group comprising approximately 44 physicians located in Nampa, Idaho.  But hospitals considering future acquisitions of physician groups, and those that the FTC … Continue Reading

Past as Prologue: Rebirth of the Merger Trial and the Bazaarvoice Case

By Lee Simowitz, Jonathan Lewis and Judy Gechman on Posted in Antitrust Litigation, Government Investigations, Merger, Merger Review, Premerger Notification, Sherman Act 7
For many years after its implementation, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 seemed to sound the death knell of post-consummation merger trials.  By establishing a file-and-wait system rather than the old catch-me-if-you-can non-system, the Act enabled the antitrust enforcement agencies to prevent the consummation of potentially anticompetitive mergers until they completed their investigation, and … Continue Reading

Could an Idaho Healthcare Merger Impact Other Mergers, Including the American/US Airways Merger?

By Jonathan Lewis and Lee Simowitz on Posted in Antitrust Litigation, Government Investigations, Healthcare, Merger, Merger Review, Sherman Act 7
With the trial over, post-trial briefs due November 1, and closing arguments scheduled for November 7, a lot more is at stake than whether St. Luke’s Health System (“St. Luke’s”) can keep Saltzer Medical Group (“Saltzer”) – a for-profit, physician-owned, multi-specialty group comprising approximately 44 physicians located in Nampa, Idaho.  St. Luke’s closed its acquisition … Continue Reading

FTC Healthcare Merger Retrospective Again?

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Healthcare, Merger
Two weeks into the FTC’s and Idaho AG’s antitrust trial challenging hospital system St. Luke’s Health System (“St. Luke’s”) acquisition of the Saltzer Medical Group (“Saltzer”) – a for-profit, physician-owned, multi-specialty group comprising approximately 44 physicians located in Nampa, Idaho – a lot more is at stake than just whether St. Luke’s eventually will be … Continue Reading

US Airways and American Airlines Have a Potential Friend in FTC Commissioner Wright

By Jonathan Lewis on Posted in Merger, Merger Review, Sherman Act 7
In their answer to the government’s complaint challenging their proposed merger, US Airways and American Airlines (the “Airlines”) tout the “immense benefits to the traveling public” that the combined “US Airways and American Airlines will offer” with “more and better travel options for passengers through an improved domestic and international network, something that neither carrier … Continue Reading

FTC Investigations of Technology Transactions – Am I at Risk?

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Merger, Merger Review, Premerger Notification, Uncategorized
A recent article in the Antitrust Law Journal, “A Survey of Evidence Leading to Second Requests at the FTC,” by Darren S. Tucker, a FTC attorney advisor who reviewed non-public information on decisions to investigate proposed transactions for the period August 2008 to August 2012, sheds light on the types of evidence the FTC staff … Continue Reading

“Highly Unusual” Circumstances End FTC Challenge to Phoebe Putney Acquisition

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Healthcare, Merger, Merger Review, Uncategorized
After running the table in the Supreme Court with a unanimous decision, which we covered, and then convincing a district court judge in Georgia to halt further consolidation of Phoebe Putney Health System (“Phoebe Putney”) and Palmyra Medical Center (“Palmyra”), the Federal Trade Commission (“FTC”) recently agreed to settle its antitrust challenge of Phoebe Putney’s … Continue Reading

FTC Investigations of Pharma and Medical Device Transactions – Am I at Risk?

By Jonathan Lewis and Lee Simowitz on Posted in Healthcare, Merger, Merger Review, Premerger Notification
A recent article in the Antitrust Law Journal titled “A Survey of Evidence Leading to Second Requests at the FTC,” by Darren S. Tucker, an attorney advisor to a FTC Commissioner who reviewed non-public information on the decisions to investigate proposed transactions for the period August 2008 to August 2012, sheds light on the types … Continue Reading

FTC Investigations of Energy and Chemical Transactions – Am I at Risk?

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Merger, Merger Review, Premerger Notification
A recent article in the Antitrust Law Journal, “A Survey of Evidence Leading to Second Requests at the FTC,” by Darren S. Tucker, an attorney advisor to a FTC Commissioner who reviewed non-public information on the decisions to investigate proposed transactions for the period August 2008 to August 2012, gives insight on the types of … Continue Reading
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