Tag Archives: DOJ

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

By 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

Trump’s Pick for Department of Justice Antitrust Division Chief

Carl HittingerTyson HerroldBy Carl Hittinger and Tyson Herrold on Posted in Antitrust & Politics, Articles
Last month we discussed Supreme Court Justice Neil Gorsuch’s confirmation hearings. Specifically, we noted the Senate Judiciary Committee’s failure to nail Gorsuch down on key antitrust issues, including issues he handled as an experienced antitrust lawyer and decided as a judge on the U.S. Court of Appeals for the Tenth Circuit, which we also wrote … 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

Clear Expectations: DOJ Outlines Tenets of an Effective Antitrust Compliance Program

Carl HittingerBy Carl Hittinger, George Stamboulidis and Erik Raven-Hansen on Posted in Antitrust Compliance
There has never been a greater emphasis on policing anticompetitive behavior worldwide. Dozens of countries have instituted effective and aggressive cartel enforcement programs following a trend of increased global enforcement, and criminal antitrust fines in the United States alone exceeded $1 billion in both 2013 and 2012. [1] Prison sentences up to 10 years have also been … Continue Reading

Are You Facing the Prospect of a Merger Investigation?

Gilbert S. KeteltasJames A. ShererBy Jonathan Lewis, Gilbert S. Keteltas, Karin Scholz Jenson and James A. Sherer on Posted in Discovery, Government Investigations, Merger Review
If your organization is facing the prospect of a merger investigation and your lawyers haven’t raised the prospect of technology-assisted document review (“TAR”), then maybe you should be talking with someone else. What is TAR? TAR, a relatively new entrant into the world of litigation and investigations, is an iterative process in which human subject … 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

So, You Want to Share Your Technical Cyber Threat Information with Your Neighbors?

Pamela Jones HarbourGerald J. FergusonTheodore J. Kobus IIIBy Jonathan Lewis, Pamela Jones Harbour, Gerald J. Ferguson and Theodore J. Kobus III on Posted in Data Privacy
Echoing guidance previously given to a nonprofit organization looking to exchange certain cybersecurity information, including exchanging actual real-time cyber threat and attack information, and others planning to exchange information concerning remediating the Y2K problems, the Department of Justice (“DOJ”) and Federal Trade Commission (“FTC”) recently released a joint “Antitrust Policy Statement on Sharing of Cybersecurity … 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

BakerHostetler Lawyers Publish Chapter on Antitrust Trends in U.S. Agribusiness

Danyll FoixBy Danyll Foix on Posted in Agriculture, BakerHostetler
The 2014 Antitrust Review of the Americas features a chapter, “‘United States: Private Antitrust Litigation,” authored by BakerHostetler Antitrust Chair Robert G. Abrams, Partner Gregory J. Commins Jr., and Partner and Editor of Antitrust Advocate Danyll W. Foix. They write, “The US agriculture and food market has become increasingly concentrated in several sectors and across multiple levels. … 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

Thresholds Do Matter – Choosing too Low a Threshold in an Ordinary Course of Business Provision Can Up Your Risk of “Gun Jumping”

By Jonathan Lewis and Judy Gechman on Posted in Government Investigations, Merger Review, Premerger Notification
Soon after someone settles “gun jumping” charges, client alerts with informative titles like “DOJ Settlement Resolves ‘Gun Jumping’ Charges” start flying around.  These “alerts” usually recite facts alleged in the complaint, say ordinary course of business provisions are typically fine, but consult an antitrust lawyer to make sure yours are okay.  But few (if any) … 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

Fix My Merger – Lessons from FTC Bureau Director Feinstein on the Use of Consent Orders to Remedy Anticompetitive Mergers

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Merger Review, Premerger Notification
In her first speech since becoming Director of the Federal Trade Commission’s Bureau of Competition, Deborah Feinstein highlighted five benefits arising from addressing antitrust violations through consent orders and dispelled a number of “persistent myths” about their use. While emphasizing the FTC “employs a rigorous case-by-case approach to law enforcement decisions,” Director Feinstein explained that … 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

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

Will the FTC Investigate My Provider Healthcare Transaction?

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Healthcare, 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, sheds light on the types of … Continue Reading

FTC Seeks to Undo Another Small, Completed Transaction

Danyll FoixBy Danyll Foix on Posted in FTC Act, Merger, Merger Review, Premerger Notification
This week, the FTC announced a proposed consent agreement to alter another completed transaction that was too small to be reported under the Hart-Scott-Rodino Act (“HSR Act”). The FTC’s complaint alleged that Solera Holdings Inc. and Actual Systems of America, Inc., through their subsidiaries, were competing providers of yard management systems software (“YMS”) used by automotive recycling … Continue Reading

Are Consummated Hospital and Physician Mergers Now in the FTC’s Crosshairs?

By Jonathan Lewis and Lee Simowitz on Posted in Government Investigations, Healthcare, Merger, Merger Review, Uncategorized
“The past is never dead. It’s not even past.”* Speaking at an American Bar Association symposium titled “Retrospective Analysis of Agency Determinations in Merger Transactions,” Federal Trade Commission (“FTC”) Chairwoman, Edith Ramirez, highlighted the FTC’s successful track record challenging transactions, but also noted “growing concern” that hospital acquisitions of physician groups are having a negative … Continue Reading

Update: Are the Regulators Coming for the Patent Trolls?

Bill DevinneyBy Bill Devinney on Posted in Patents
  We recently wrote about a workshop held by the Department of Justice and the Federal Trade Commission to discuss perceived abuses by patent acquisition entities.  The workshop included a panel discussion about whether the potential harm to innovation and competition caused by PAEs, particularly with regard to patent aggregators who may acquire market power, or … Continue Reading

Antitrust Law Encourages Accountable Care Organizations (“ACOs”) Formation

By Jonathan Lewis and Lee Simowitz on Posted in Healthcare
Once again, the staff of the Federal Trade Commission (“FTC”) has rebutted claims by physician groups that state legislation is needed to allow independent physicians to collaborate.  In support of legislation introduced in Connecticut, eight medical organizations representing more than 9,000 Connecticut physicians claimed that “federal antitrust laws prohibit Connecticut physicians from collective discussions about … Continue Reading

LIBOR Going Forward: How Will Dismissal of Antitrust Claims Affect Investigations and Private Claims?

Bill DevinneyBy Bill Devinney on Posted in Antitrust Litigation, Government Investigations, Sherman Act 1
We recently wrote about the dismissal of the plaintiffs’ antitrust claims against banks involved in the LIBOR manipulation scandal for failure to allege an antitrust injury.  Since that dismissal, the court has granted plaintiffs leave to move to amend their complaints, although the court openly questioned whether the plaintiffs’ proposed amendments cured the defects in … Continue Reading

NC Governor Signs Law Banning Most Favored Nations Provisions in Health Care Contracts

By Jonathan Lewis and Lee Simowitz on Posted in Healthcare, Sherman Act 1
Despite opposition and Blue Cross Blue Shield of North Carolina’s claim that it “has not used ‘most favored nation’ clauses in [its] new contracts and in fact [they are] not part of our strategy to use those clauses on contracts executed in the future,” on May 8 North Carolina’s Governor, Pat McCrory, signed into law … Continue Reading
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