Thursday, October 7, 2010
The FTC's annual report on enforcement of the Hart-Scott-Rodino Act is out now. You can download it now. Some interesting tidbits, including this figure:
In recent days, you've no doubt heard talk of the new merger wave - how business seems to have turned around and the prospect that businesses might be about ready to unleash the $3 billion on their books as a private stimulus. Indeed, the number of deals is up 20% or so this year. Looking at the figure above puts all that talk into some context. We're nowhere near the salad days of the Internet bubble in 2000 or even the height of the credit bubble in 2007. If things are turning around, no one should think those days will be back anytime soon.
What else? Well, there may not be nearly as many deals, but the FTC is busy - enforcement is up, way up:
Monday, May 10, 2010
It doesn't happen often. But, that doesn't mean it doesn't happen. The FTC is now suing Dun & Bradstreet (H/T Main Justice) to unwind a transaction D&B closed last year. According to the complaint, D&B acquired the Quality Education Data (QED), a division of Scholastic, Inc., in an asset purchase and integrated QED with its own Market Data Retrieval unit in February 2009. The FTC sums up the transaction this way:
Market Data Retrieval (“MDR”), a company of D&B, is the leading provider of data for marketing to kindergarten through twelfth-grade teachers, administrators, schools and school districts (“K-12 data”) in the
. K-12 data includes but is not limited to contact, demographic and other information relating to K-12 educators. K-12 data is sold or leased to customers that use the data to market products and services to educators. In early 2009, D&B acquired the assets of QED, MDR’s primary competitor. As a result of the acquisition, MDR now holds over 90% of the relevant market, with only a small fringe consisting of two firms accounting for the remainder. This transaction is in practical effect a merger-to-monopoly and, if allowed to remain, would likely allow MDR unilaterally to exercise market power in various ways, including increasing prices and reducing product quality and services to K-12 data customers. United States
"Merge-to-monopoly"? Acquiring your “primary competitor”? Neither of those sound good. In fact, they’re
not. So, why didn’t the HSR process
catch this transaction? Simply put, the
deal was too small to trigger a required HSR filing. The transaction was valued at $29 million,
well below the $69 million trigger at the time.
It was probably unwise not to file anyway. Certainly, in antitrust sensitive
transactions the FTC will accept a voluntary filing. Here it looks like the parties decided against such a filing. They either
neglected to consult antitrust counsel on the transaction, or they did, and then took
a shot (in Feb 2009) that the somnolent attitude towards enforcement that was a
hallmark of the previous administration would continue going forward. And anyway … unscrambling the eggs post
closing is so expensive and time-consuming, the FTC wouldn’t waste their time
on such a small market. Would they?
"Merge-to-monopoly"? Acquiring your “primary competitor”? Neither of those sound good. In fact, they’re not. So, why didn’t the HSR process catch this transaction? Simply put, the deal was too small to trigger a required HSR filing. The transaction was valued at $29 million, well below the $69 million trigger at the time. It was probably unwise not to file anyway. Certainly, in antitrust sensitive transactions the FTC will accept a voluntary filing. Here it looks like the parties decided against such a filing. They either neglected to consult antitrust counsel on the transaction, or they did, and then took a shot (in Feb 2009) that the somnolent attitude towards enforcement that was a hallmark of the previous administration would continue going forward. And anyway … unscrambling the eggs post closing is so expensive and time-consuming, the FTC wouldn’t waste their time on such a small market. Would they?
They would. Here's a little advice from the FTC's Richard Feinstein, Director of the Bureau of Competition:
They would. Here's a little advice from the FTC's Richard Feinstein, Director of the Bureau of Competition:
Despite its relatively low dollar value, this transaction dramatically decreased competition in the marketplace. When Dun & Bradstreet acquired QED, it bought its closest competitor and created a monopoly. That’s going to get the FTC’s attention every time.
While a voluntary HSR filing would not have created an absolute safe harbor from a subsequent antitrust suit, it might have cleared the ground and allowed the parties to address the government's antitrust concerns earlier on in the process - before there had been any integration work, before there had been any joint marketing, etc. True, making such a filing might have added additional costs and added time to an otherwise small transaction. These are common cost/benefit questions that parties have to consider with antitrust counsel in these kinds of transactions. They can be close calls. In this case, it looks like the parties may have made the wrong call. By avoiding a voluntary pre-closing process, the parties have apparently triggered a worse fate - the potential that the government will come in ex post and undo a deal that closed more than a year ago.
Update: A reader helpfully points out the following:
Wednesday, April 21, 2010
The FTC and the DOJ's Antitrust Division have just released their draft revised horizontal merger guidelines for public comment. The draft is available on the joint FTC/DOJ webpage. These revised guidelines are the result of a series of workshops that the FTC and DOJ conducted in the Fall and Winter. According to the press release major differences between the current and proposed Guidelines are as follows:
- The proposed guidelines clarify that merger analysis does not use a single methodology, but is a fact-specific process through which the agencies use a variety of tools to analyze the evidence to determine whether a merger may substantially lessen competition.
- The proposed guidelines introduce a new section on “Evidence of Adverse Competitive Effects.” This section discusses several categories and sources of evidence that the agencies, in their experience, have found informative in predicting the likely competitive effects of mergers.
- The proposed guidelines explain that market definition is not an end itself or a necessary starting point of merger analysis, but instead a tool that is useful to the extent it illuminates the merger’s likely competitive effects.
- The proposed guidelines provide an updated explanation of the hypothetical monopolist test used to define relevant antitrust markets and how the agencies implement that test in practice.
- The concentration levels that are likely to warrant either further scrutiny or challenge from the agencies are updated in the proposed guidelines.
- The proposed guidelines provide an expanded discussion of how the agencies evaluate unilateral competitive effects, including effects on innovation.
- The proposed guidelines provide an updated section on coordinated effects. They clarify that coordinated effects, like unilateral effects, include conduct not otherwise condemned by the antitrust laws.
- The proposed guidelines provide a simplified discussion of how the agencies evaluate whether entry into the relevant market is so easy that a merger is not likely to enhance market power.
- The proposed guidelines add new sections on powerful buyers, mergers between competing buyers, and partial acquisitions.
Wednesday, March 24, 2010
Thursday, March 11, 2010
The Senate Commerce Committee is having more hearings on the Comcast/NBC deal today at 10:00am. Chirstine Varney (head of the DOJ's anti-trust division), Brian Roberts (CEO of Comcast), Prof. Christopher Yoo (UPenn Law) are among those on the witness list. The webcast will be available here.
Tuesday, February 16, 2010
You might remember that the Oracle-Sun deal filed and then pulled its pre-clearance notification in Russia when it ran into difficulties with EU anti-trust authorities. At the time, I was a little mystified. Now, Clifford Chance is setting us all straight. Here's their memo on the Russian merger pre-clearance process and part of their assessment of notification requirements for transactions involving a foreign buyer and seller:
Russian competition law follows the "effects doctrine" and the notification requirements may also apply in case of foreign-to-foreign mergers.Until August 2009, merger clearance in Russia was required if a foreign-to-foreign transaction met both of the following criteria: (1) it resulted in the acquisition of shares or assets of Russian companies, or direct or indirect control over Russian companies; and (2) it results or may result in the restriction of competition in Russia.This structure was, however, reformed as a part of the Second Antimonopoly Package, which turned these two formerly cumulative criteria into alternative requirements. In addition, the second criterion was modified, which is expected to result in broader application of the Russian merger control rules by FAS. It is now sufficient that a transaction "affects" competition in Russia, while, previously, it was required that the transaction "restricts or may restrict" competition.To date FAS has not issued any official clarification as to how it interprets the revised requirement. Based on its current practice, one may, however, surmise that a foreign-to-foreign transaction falls within the Russian merger control regime where the target entity directly or indirectly controls any Russian entities, owns assets located in Russia or has substantial turnover from operations in Russia
Wednesday, January 27, 2010
In an unprecedented first, effective February 22, 2010, the notification thresholds under the Hart-Scott-Rodino Antitrust Improvements Act will be lowered. The jurisdictional thresholds are adjusted annually under the indexing required by the 2000 amendments to the Act, which require the Federal Trade Commission to revise the thresholds annually based on the change in gross national product.
Monday, January 25, 2010
The DOJ Antitrust Division just announced it has approved the proposed Tickmaster-Live Nation deal. This transaction was subject to a good deal of controversy -- including vocal opposition from The Boss. And if Springsteen has an opinion on a transaction, it's got to be a big deal. From the DOJ press release:
After a rigorous investigation, we concluded that the transaction, as originally proposed, was anticompetitive. ...
The relief here is both structural and behavioral. The settlement requires Ticketmaster to divest more ticketing than it will gain through its acquisition of Live Nation. Simultaneously, the licensing solves a second competitive issue by giving AEG, an integrated competitor, the ability and incentive to compete with the combination of Ticketmaster and Live Nation for concert promotion, venue management, and ticketing.
A copy of the DOJ's Competitive Impact Statement filed with the court is here and AEG and Tickmaster's technology agreement - required as part of the settlement is here.
Under the settlement, Ticketmaster will be required to license its ticketing software to AEG, its single largest customer. AEG will now have the opportunity and incentive to compete in primary ticketing, both in its own venues and third-party venues. Under the settlement, AEG will transition from using Ticketmaster for its ticketing needs, which last year involved about ten million tickets, to its own ticketing platform. Thus, the proposed settlement opens the door for AEG to become a vertically integrated competitor with competitive incentives similar to those of the merged company.
In addition, Ticketmaster will divest Paciolan, an established ticketing business that sells tens of millions of tickets annually. Within sixty days, Ticketmaster will divest Paciolan to Comcast-Spectacor, which has already signed a letter of intent, or some other buyer suitable to the Department.
Tuesday, January 19, 2010
Monday, January 11, 2010
Abstract: China's Anti-Monopoly Law went into effect
on August 1, 2008. Even
though enforcement authorities tend to build their capacity progressively, China has already seen three milestone case decisions in the past year: InBev/Anheuser-Busch, Coca-Cola/Huiyuan, and Mitsubishi Rayon/Lucite. In this article, we
elaborate the background of
each case and provide in-depth analysis of each decision. In particular, we explore the common characteristics of the cases, the economic theories on
which the merger control authority has relied in its merger decisions, and the patterns regarding China's merger policy. Along the same lines McDermott Will & Emery's China office has client memo on the new regulations on merger notification that went into effect on January 1, 2010. The regulations start to lay out premerger notification processes that corporations wishing to merge will have to comply with. -bjmq
Abstract: China's Anti-Monopoly Law went into effect on August 1, 2008. Even though enforcement authorities tend to build their capacity progressively, China has already seen three milestone case decisions in the past year: InBev/Anheuser-Busch, Coca-Cola/Huiyuan, and Mitsubishi Rayon/Lucite. In this article, we elaborate the background of each case and provide in-depth analysis of each decision. In particular, we explore the common characteristics of the cases, the economic theories on which the merger control authority has relied in its merger decisions, and the patterns regarding China's merger policy.
Along the same lines McDermott Will & Emery's China office has client memo on the new regulations on merger notification that went into effect on January 1, 2010. The regulations start to lay out premerger notification processes that corporations wishing to merge will have to comply with.
Friday, December 4, 2009
Comcast’s deal to acquire NBC from GE announced yesterday doesn’t break a whole lot of new ground from a deal structuring point of view. In general, GE contributes its NBC/Universal assets to the joint venture. For its parts, Comcast pitches in cash plus cable assts like the E! Network and the Golf Channel (which suddenly have many more synergies than they used to). Where this deal is likely to get interesting, though, is on the regulatory approval front.
Of course, it will need antitrust clearance through the HSR premerger approval process. Although this is a pretty well-trod path, the present Administration has already signaled on a number of occasions that the era of somnolent antitrust enforcement is over. This is a big transaction, vertically integrating a large segment of the media industry (content generation to distribution). Comcast already making its pitch that this deal will be good for consumers – “Universal movies could reach cable [subscribers] more quickly after showing in theaters.” Somehow, the thought of Land of the Lost and Drag Me to Hell showing up my TV faster than they otherwise would does not make me feel better.
As I noted in a post a couple of months ago, in media deals, the FCC also has an independent premerger approval process of its own. Although the FCC rarely stops deals from proceeding, it has a much broader charge than the FTC. The HSR process is focused on assessing the potential anti-competitive effects of a proposed merger. The FCC’s charge is to assess the proposed transaction on the basis of a “public interest” analysis. In assessing whether the Comcast/NBC deal is in the public interest, the FCC will determine whether the transaction will media diversity (“the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.” Turner Broadcasting System, Inc. v. FCC), the quality of local services and the provision of new services, promote competition, and localism among others. That’s a lot of ground to cover. I’m sure Comcast’s legal counsel have been studying the FCC’s 2003 order in the GM/Hughes and News Corp merger for hints how this review is going to go. The structure of the transaction there was similar to this one. Although the vertical integration in the NewsCorp/Hughes transaction was up the chain and not down, the arguments and the public interest analysis done there should look familiar to people. This process, because it’s done on a case-by-case basis and because it’s not nearly has common as the HSR process, could take some time to accomplish.
Third, there’s Congress. Although Congress doesn’t have a premerger approval process, every cable TV subscriber has a Congressman and they must be heard. That fact no doubt generates what the Supreme Court has called “an independent interest in preserving a multiplicity of broadcasters.” Henry Waxman, Chairman of the House Committee on Energy and Commerce, released the following statement:
The proposed Comcast-NBC Universal joint venture agreement has the potential to reshape the media marketplace. This proposal raises questions regarding diversity, competition, and the future of the production and distribution of video content across broadcasting, cable, online, and mobile platforms. It is imperative that the FCC, the Justice Department, and the FTC rigorously assess whether this transaction is in the public interest.
I will work with Rep. Rick Boucher, Chairman of the Subcommittee on Communications, Technology, and the Internet, to schedule hearings on this matter at the earliest practicable date.
So, there will hearings in which assorted Congressmen ask questions and give their point of view on the usefulness of a Comcast/NBC link-up. That ought to be fun.
Update: Not to be outdone - Sen. Herb Kohl, Chairman of the Senate Subcommittee on Antitrust, Competition, and Consumer Rights has also released a statement of the proposed deal. Surprise, surprise, he'll be holding hearings, too!
This acquisition will create waves throughout the media and entertainment marketplace and we don't know where the ripples will end. Antitrust regulators must ensure that all content providers are treated fairly on the Comcast platform, and that Comcast does not get undue advantages in gaining access to programming. We plan a public hearing so that consumers can get a better sense of how this deal could affect their access to diverse programming and information, especially as they more often look to the internet for such services. It's critical that we preserve robust competition and promote innovative and emerging program delivery in this rapidly changing market.
Wednesday, December 2, 2009
The FTC is hosting a series of workshops on horizontal merger guidelines as part of its process of rethinking such guidelines. The first of the five workshops is today in DC. You can catch the webcast here. The schedule for the rest of the workshops and materials is here.
Thursday, October 22, 2009
MySQL, an afterthought in Oracle's decision to buy Sun last April has turned into a major obstacle with the EU Competition Commission standing in the way over the fate of the technology. According to PC World representatives from Oracle met with the commission yesterday and, well, it didn't go well.
In a meeting with Oracle President Safra Catz in Brussels on Wednesday, Competition Commissioner Neelie Kroes "expressed her disappointment that Oracle had failed to produce, despite repeated requests, either hard evidence that there were no competition problems or, alternatively, proposals for a remedy to the competition problems identified by the Commission," a Commission spokesman said.
Meanwhile Sun's sales have been declining as rivals IBM and Hewlett-Packard take advantage of the uncertainty around Sun's business with aggressive migration plans. Oracle CEO Larry Ellison said last month that Sun is losing $100 million a month while it waits for the deal to close.
He has also asserted that Oracle's database competes with Microsoft's SQL Server and IBM's DB2 products, and not with MySQL.
Sun announced a big round of layoffs yesterday, citing the additional time it is taking to close the deal with Oracle. The company said it will lay off 3,000 workers around the world over the next 12 months. Oracle is widely expected to make deeper job cuts if the deal closes.
Although the delay is expensive, short of reaching a deal with the Commission, there's no real end in sight for Oracle. The Merger Agreement (Sec. 8.01(b)) won't permit Oracle to walk for antitrust reasons until at least April of 2010. That's six months, or $600 million in losses away.
In Section 6.10 (below), the parties included what appears to be relatively modest antitrust language.
(b) Without limiting the generality of the undertakings pursuant to this Section 6.10, the parties hereto shall (i) provide or cause to be provided as promptly as practicable to Governmental Authorities with regulatory jurisdiction over enforcement of any Antitrust Laws (each such Governmental Authority, a “Governmental Antitrust Authority”) information and documents requested by any Governmental Antitrust Authority or necessary, proper or advisable to permit consummation of the transactions contemplated by this Agreement, including preparing and filing any notification and report form and related material required under the HSR Act and any additional consents and filings under any Antitrust Laws as promptly as practicable following the date of this Agreement (but in no event more than fifteen (15) Business Days from the date hereof except by mutual consent confirmed in writing) and thereafter to respond as promptly as practicable to any request for additional information or documentary material that may be made under the HSR Act and any additional consents and filings under any Antitrust Laws; (ii) use their reasonable best efforts to take such actions as are necessary or advisable to obtain prompt approval of consummation of the transactions contemplated by this Agreement by any Governmental Authority; and (iii) use their reasonable best efforts to contest on the merits, through litigation in United States District Court and through administrative procedures in relation to other Government Authorities, any objections or opposition raised by any Governmental Authority;provided, however, that nothing in this Section 6.10 shall require Parent to appeal any Order from a Governmental Authority.
What are "reasonable best efforts" anyway? The reaction we're hearing from the EU Competition commission suggests that Oracle could be doing something "reasonable" to assuage their concerns, but it's not. "Reasonable best efforts" is one of those ambiguous phrases, like materiality, that people think have meaning, but when one tries to give them meaning, they get harder to actually pin down. One would think that the mounting losses at Sun would be motivation enough for Oracle to give its dealings with the EU its best effort, but apparently it's not. I find it hard to believe that Oracle is unable (or unwilling) to respond to EU requests for a report on the marketplace and competition with respect to MySQL. So, while Oracle digs in its heels over MySQL, Sun is left to suffer.
Sunday, October 11, 2009
Thursday, October 8, 2009
Apparently, The Boss has fans in the UK. According to the WSJ, the Competition Commission, the UK antitrust regulators, are moving to hold up the Ticketmaster-Live Nation transaction. The Competition Commission issued a statement today ruling against the merger:
Ticketmaster Entertainment, Inc and Live Nation, Inc will limit the development of competition in the market for live music ticket retailing.
In its provisional findings published today, the CC has concluded that the merger could severely inhibit the entry of a major new competitor (CTS Eventim) into the UK ticketing market. Prior to the announcement of the merger, Live Nation had signed an agreement with CTS to provide ticketing services for its live music events and venues in the UK. The CC believes that this agreement with Live Nation would have provided CTS with a foothold in the UK market from which it would have grown, increasing significantly the degree of competition in a market which is currently dominated by Ticketmaster and one other large ticketing agent.The CC believes that, if the merger were to proceed, Live Nation would have the incentive to impede CTS’s entry into the UK ticketing market, in particular by minimizing the supply of its tickets to CTS, and thereby frustrate CTS from becoming an additional effective competitor to Ticketmaster. This could lead to higher net prices (eg due to lower rebates to promoters and venues) and/or lower service quality and/or less innovation in the market than would otherwise be the case.
Sunday, October 4, 2009
Early last month Diebold announced that it had sold its Premier Election Solutions, Inc. sub to Election Systems & Software (links are to their respective press releases announcing that the transaction had closed). The sale was small - $5 million plus 70% of receivables from sales as of August 31, 2009. Given that the sale was well under the HSR filing thresholds, the parties likely did not seek pre-merger approval from the FTC. Now comes word that ES&S's competitors are seeking an injunction from a federal judge in NJ to "unscramble the eggs" and order ES&S to undo the transaction. McClatchy reports:
A federal judge in Camden, N.J., agreed late Friday to hear a request for an emergency injuction that could halt Election Systems & Software's announced acquisition of Diebold Inc.'s Premier Election Solutions.
The quietly arranged shotgun wedding between the two voting-machine giants would give ES&S control of election systems in use in almost 70 percent of the nation's voting precincts. Federal Judge Robert Kugler agreed to hear Tuesday the request for immediate injunction brought by a small competitorm, Hart InterCivic Inc. The basic contention is that ES&S did a "stealth" transaction - as if by not voluntarily making an HSR filing one might impute some sort of bad faith. That's a tough bet. I wouldn't take it. In any event, it's worth noting that ES&S's competitors - and not local governments (customers) - are the ones seeking the injunction. This might well color the outcome. -bjmq
The quietly arranged shotgun wedding between the two voting-machine giants would give ES&S control of election systems in use in almost 70 percent of the nation's voting precincts. Federal Judge Robert Kugler agreed to hear Tuesday the request for immediate injunction brought by a small competitorm, Hart InterCivic Inc.
The basic contention is that ES&S did a "stealth" transaction - as if by not voluntarily making an HSR filing one might impute some sort of bad faith. That's a tough bet. I wouldn't take it. In any event, it's worth noting that ES&S's competitors - and not local governments (customers) - are the ones seeking the injunction. This might well color the outcome.
Friday, September 18, 2009
With the current state of the economy, creditors are being forced to think about taking equity positions in debtors. In most sectors that doesn't present a problem, but an article in today's WSJ points to the media sector where this is becoming a surprise issue for unwitting creditors who are taking equity. The FCC must approve these sales. While the 2006 ownership rules make cross-ownership and ownership of multiple platforms easier to accomplish, there's still an entire merge approval process at the FCC. Phil Weiser (formerly of U. Colorado, now of the U.S. Department of Justice Antitrust Division as deputy assistant attorney general for international, policy and appellate matters) has a nice paper that appeared last year in the Federal Communications Law Review on the challenges of the dual merger review regime (DOJ/FTC/FCC).
Wednesday, September 16, 2009
A number of members of Congress and pressure groups have apparently started pushing the FTC to give the CVS/Caremark merger from two years ago another look. This reminds me of a question a student raised in my M&A class last year: does pre-merger clearance create some sort of safe harbor that removes all post-closing antitrust risk from a transaction?" The CVS/Caremark deal is a good reminder that the proper answer to that question is no. One should not mistake pre-merger clearance for an anti-trust "get out of jaill free" card. Although they don't go there very often, the FTC reserves the right to come back and examine the competitive (or anti-competitive) effects of mergers at any point in the future.
Thursday, September 3, 2009
Monday, August 3, 2009
On July 21, 2009, the Antimonopoly Bureau of China's Ministry of Commerce (MOFCOM) released statistics on their premerger approval work. The Gerson Lerhman Group has an English language summary with links to the Chinese report is available here.
Since August 2008 when China's Antimonopoly Law (AML) took effect and through the end of 2009, MOCFOM received 58 merger filings, among them the review of 46 cases had been completed. MOFCOM approved 43 cases without conditions, approved 2 cases with conditions, and rejected 1 case. Pursuant to Article 30 of the AML, MOFCOM had published earlier its decisions on the three cases that were either rejected or approved with conditions. These decisions provide a peek into MOFCOM's thinking in reviewing mergers and acquisitions that might cause anticompetitive concerns in China.
While we're on the topic of China's AML, here's a recent article in China Law Vision on the extraterritoriality of China's AML. The author suggests that the AML would not reach the Rio Tinto - BHP Biliton transaction.