United States: Government Investigations

Litigated merger challenges

DraftKings/FanDuel

In June 2017, the FTC filed a complaint in the US District Court for the District of Columbia challenging the merger of DraftKings and FanDual, the two largest daily fantasy sports sites.1 The antitrust bar had considered this merger one to watch ever since the parties announced their plans to merge last November, following a turbulent year in which several attorneys general questioned the legality of their operations.2

Absent an injunction, the parties would have been free to close the transaction on 21 June. The FTC sought a temporary restraining order, which the District Court granted on 20 June, ordering the parties to hold off on consummating the merger until the court rules on the government's motion for a preliminary injunction.3 While the FTC's complaint was filed under seal, its motion seeking the TRO alleges that the merger would result in a ‘near-monopoly' in the market for daily fantasy sports contests, with a combined entity controlling more than 90 per cent of the market.4 The Commission also issued an administrative complaint, with an administrative trial set to begin 21 November 2017.

EnergySolutions/Waste Control Specialists

In August 2016, the Department of Justice sued to block EnergySolutions' proposed US$367 million acquisition of Waste Control Specialists, alleging that EnergySolutions sought to eliminate ‘the only real competition it has ever faced' for the disposal of low level radioactive waste (LLRW).5 According to the DOJ, the parties were the only significant competitors in the market for LLRW disposal in 36 states, the District of Columbia, and Puerto Rico. The DOJ also alleged that new entry was unlikely to occur on a timetable or sale that would counteract the merger's competitive harm, citing regulatory and licensing requirements that make entry ‘rigorous, time-consuming and costly.'6

In a 10-day trial that concluded in May, the DOJ argued that the deal would effectively create a monopoly, while the parties countered with a failing firm defence. That same defence proved effective last year when the FTC challenged a merger between two central Minnesota healthcare providers.7 The government insisted that in this case, however, Waste Control Specialists had not adequately sought alternatives to the current transaction.8

In June 2017, Senior Judge Sue Robinson of the US District Court for the District of Delaware entered judgment in favour of the DOJ, enjoining the parties from consummating the deal. The court's opinion was filed under seal.

Anthem/Cigna

In July 2016, the Department of Justice filed two merger challenges in the DC District Court to block Anthem's proposed acquisition of Cigna and Aetna's proposed acquisition of Humana.10 Together, the transactions would have reduced the number of national health insurance providers from five to three. The suits were filed as related cases but were subsequently separated, with Judge Amy Berman Jackson presiding over the Anthem/Cigna trial.11

In February 2017, the District Court enjoined the merger based on its likely impact on health insurance sales to ‘national accounts' in 14 states. Notably, Judge Jackson ruled in favour of the government on its first claim and declined to rule on the remaining claims. Judge Jackson's redacted opinion focuses mostly on the shortcomings of the parties' efficiencies argument.12 On appeal, the parties argued that the District Court erred in its ‘categorical rejection' of the deal's cost-saving opportunities. The government maintained its position that the proposed efficiencies were unsubstantiated and not merger-specific. In April 2017, the DC Circuit issued a 2-1 decision upholding the preliminary injunction, holding that the District Court did not err in finding the claimed efficiencies ‘dubious.'13 Anthem filed a writ of certiorari seeking Supreme Court review.14

Meanwhile, following the District Court's decision in February 2017, Anthem sought a temporary restraining order in Delaware Chancery Court to prevent Cigna from walking away from the deal. Cigna counterclaimed seeking a US$1.85 billion breakup fee and US$13 billion in damages. Vice Chancellor Laster approved the TRO, but some two months later, when Anthem sought a 60-day preliminary injunction to bar Cigna from terminating the trans­action, Laster denied the request, describing Anthem's chances of winning at the Supreme Court level, prevailing in lower courts on remand and reaching the required settlement with the DOJ as ‘remote.'15 Anthem released a statement the next day stating that it had terminated the merger agreement.16

Aetna/Humana

The Department of Justice and several attorneys general filed suit in the District of Columbia to block Aetna's proposed US$37 billion acquisition of Humana. The complaint, filed in July 2016, claimed that the transaction would substantially lessen competition for individual Medicare Advantage plans and individual health insurance plans offered on public exchanges.17

Following a 13-day trial, District Judge John Bates sided with the DOJ, finding that the proposed merger would substantially lessen competition in violation of the Clayton Act.18 One major point of contention at trial was whether the relevant product market should include both Medicare Advantage (benefits offered by private insurers) and Original Medicare (benefits offered directly by the government). Citing the parties' business documents and econometric evidence, Judge Bates rejected the parties' arguments and found that Medicare Advantage plans and Original Medicare do not belong in the same antitrust product market.19 The court viewed Aetna as a ‘particularly aggressive' competitor in the Medicare Advantage market, and removing such a competitor from the market as increasing the likelihood of potential anticompetitive effects.20

Judge Bates' decision also criticised Aetna's decision to withdraw from public health insurance exchanges in 17 complaint counties, finding it did so to improve its litigation position rather than for legitimate business reasons.21 Judge Bates also took issue with what he concluded were ‘repeated efforts to conceal a paper trail about this decision-making process' under the guise of attorney-client privilege.22 Ultimately, the judge stopped short of adopting the DOJ's position that the court should conduct its analysis as if Aetna would continue to compete in those 17 counties. Instead, he found that Aetna was likely to compete with Humana in three such counties and that the merger was ‘likely to substantially lessen competition in those counties.'23

Following the District Court's decision, the parties abandoned the merger. On 14 February, Aetna issued a statement that it would pay Humana a US$1 billion termination fee.24

Penn State Hershey/Pinnacle

In December 2015, the FTC and Pennsylvania Attorney General filed a civil complaint seeking to enjoin a merger between Penn State Hershey Medical Center and PinnacleHealth System pending an administrative trial. The complaint alleged that the merged entity would ‘substantially reduce competition in the area surrounding Harrisburg, Pennsylvania, and lead to reduced quality and higher healthcare costs for the area's employers and residents.'25

The District Court rejected the FTC and Pennsylvania's request to enjoin the merger, finding the FTC's proposed geographic market definition ‘unrealistically narrow.'26 On appeal, the Third Circuit reversed, concluding that the District Court erred ‘in both its formulation and its application' of the hypothetical monopolist test.27 The Third Circuit criticised the lower court's reliance on patient flow data to determine that the proposed geographical market was too narrow, describing that data as ‘particularly unhelpful in hospital merger cases.'28 The District Court also failed to properly consider the likely response of insurers to a price increase and, instead, improperly focused on the likely response of patients. According to the Third Circuit, this misplaced focus revealed a ‘­misunderstanding of the "commercial realities" of the healthcare market.'29 The Third Circuit remanded the case and directed the District Court to preliminarily enjoin the proposed merger.30

Following the Third Circuit's decision, the parties announced their decision to abandon the transaction in light of ‘the time and cost associated with continuing litigation.'31 The FTC subsequently dismissed its administrative action challenging the merger.32

Advocate/NorthShore

In December 2015, the FTC filed administrative and civil complaints seeking to enjoin the proposed merger of two Chicago area healthcare systems: Advocate Health Care Network and NorthShore University HealthSystem.33 The complaint alleged that the merged entity ‘would operate a majority of the hospitals in the area and control more than 50 per cent of the general acute care inpatient hospital services,' resulting in increased healthcare costs for consumers.34

The US District Court for the Northern District of Illinois originally denied the FTC's request for a preliminary injunction, finding the FTC's geographic market definition to be too narrow. On appeal, the Seventh Circuit reversed, and held that the District Court committed clear error.35 The appellate court identified several errors in the lower court's analysis, including the court's misinterpretation of the hypothetical monopolist test as circular reasoning.36 The District Court also failed to properly consider commercial insurers in its analysis, even though the ‘geographic market questions is [...] most directly about "the likely response of insurers," not patients, to a price increase.'37 On remand, the District Court granted the preliminary injunction ‘in light of the guidance of the Seventh Circuit' and analysis offered by the FTC's expert witness.38

Shortly after the District Court granted the preliminary injunction, the parties announced their decision to walk away from the deal, citing the ‘time, cost, and uncertainty of pursuing any additional appeals.'39 Following that announcement, the FTC dismissed its administrative action challenging the transaction.40

Settled mergers

Boehringer Ingelheim/Sanofi

Boehringer Ingelheim GmbH, a German pharmaceutical company, and Sanofi SA, a pharmaceutical company based in Paris, proposed an asset swap that the FTC alleged would harm competition in the United States for pet vaccines and some parasite control products.41 To settle those charges, Boehringer Ingelheim consented to divesting five kinds of animal health products.42 The companies announced that the deal had closed in January 2017.43

Carmike/AMC

In March 2016, AMC Entertainment Holdings Inc announced its intention to acquire Carmike Cinemas Inc.44 Nine months later, the DOJ revealed that AMC would have to take certain actions to address concerns that the transaction would harm competition in the local markets in which the two compete and in the preshow services and cinema advertising markets, in which National Cinemedia LLC (NCM) and Screenvision LLC serve 80 per cent of screens in the United States.45 Without the DOJ's conditions, AMC would have been a significant owner of both NCM and Screenvision post-transaction, which would have incentivised AMC to reduce competition.46 The deal would have also taken Carmike's future growth away from Screenvision's business, because all new AMC theatres would use NCM's services.47

To close the deal, AMC had to (i) divest theatres in 15 markets, (ii) sell most of its holdings of and release its governance rights in NCM, and (iii) transfer 384 screens to Screenvision.48 The DOJ also required AMC to create firewalls to prevent itself from receiving sensitive information and to keep such information from flowing between NCM and Screenvision.49 Renata Hesse, Acting Assistant Attorney General of the Antitrust Division said:

Moviegoers across the United States have benefited from head-to-head competition between AMC and Carmike that has kept ticket prices in check and delivered a higher quality movie experience. Today's settlement will ensure that movie theatre competition is preserved in 15 local markets where AMC and Carmike currently compete. In addition, by requiring AMC to reduce its equity stake in NCM, terminate its participation in NCM's business, and transfer screens to Screenvision, the settlement will promote continued vigorous competition between the two leading cinema advertising networks - competition that the division fought to protect when it blocked the NCM-Screenvision merger.50

Ball/Rexam

Ball Corporation announced it would acquire Rexam PLC in February 2015.51 The FTC was concerned that the transaction would decrease competition for certain aluminium cans in regions of the United States, as well as for certain aluminium cans nationwide, and increase the possibility of coordination among competitors.52 In addition to other conditions, the FTC announced on 28 June 2016 that it required the companies to divest eight aluminium can plants in order to move forward with the deal.53 The European Commission also investigated the transaction, approving it on the condition that Ball divest multiple plants.54

Anheuser-Busch InBev/SABMiller

In July 2016, the DOJ announced it would settle with Anheuser-Busch InBev (ABI), allowing it to acquire SABMiller under certain conditions.55 Among those conditions are that ABI must divest SABMiller's business in the United States including SABMiller's interest in MillerCoors, ABI must disallow policies that limit independent beer distributors' sale and promotion of competitors' beers, and ABI must allow the DOJ to review acquisitions of distributors and brewers.56 Deputy Assistant Attorney General Sonia Pfaffenroth of the Antitrust Division said that the settlement ‘will help preserve and promote competition in the multibillion-dollar US beer industry' and ‘preserves the ability of smaller brewers - including brewers of craft and import beers - to compete against ABI by protecting their access to important distribution networks. Independent distributors that sell ABI's beer will have the freedom to sell and promote the variety of beers that many Americans drink.'57

Mergers abandoned prior to litigation

Lam/KLA-Tencor

Lam Research Corporation, a supplier of semiconductor fabrication equipment and process technology, and KLA-Tencor Corporation, a seller of ‘semiconductor fabrication metrology and inspection equipment,' announced plans to merge the two companies in October 2015.58 The DOJ told the companies of its concerns that the transaction would be anticompetitive.59 Acting Attorney General Renata Hesse stated that: ‘Innovation in the semiconductor industry is critically important to the American economy, and the proposed transaction presented concerns about the ability of the merged firm to foreclose competitors' development of leading edge fabrication tools and process technology on a timely basis.'60 In October 2016, the companies announced that they would abandon the deal.61

Deere/Precision Planting

In August 2016, the DOJ sued to block Deere & Company's acquisition of Precision Planting LLC from Monsanto Company.62 Allegedly, the transaction would have been a merger to monopoly in the high-speed precision planting systems market.63 Instead of going to trial, which was scheduled for June 2017, the parties abandoned the transaction.64

Non-merger enforcement

Invibio

In July 2016, the FTC approved a consent order with Victrex plc and its wholly owned subsidiaries, Invibio Limited and Invibio, Inc (collectively, ‘Invibio'), over allegations that it violated section 5 of the FTC Act by using long-term exclusive contracts to maintain its monopoly. According to the complaint, Invibio was the first and only supplier of implant-grade polyetheretherketone, also known as PEEK, to medical device makers for years until Solvay Specialty Polymers LLC and Evonik Corporation entered the market.65 The FTC alleged that to curtail competition, Invibio embarked on an exclusivity strategy with existing and potential competitors characterised by ‘(1) inserting more explicit exclusivity provisions into supply contracts; (2) expanding the scope of and limiting the exceptions to exclusivity requirements; and (3) employing restrictive contract terms that impeded customers' ability to switch to an alternative PEEK supplier for existing products even upon contract expiration.'66 Invibio's strategy was aided by the fact that it was difficult for device makers to obtain regulatory clearance to use a new source of PEEK for all of their devices quickly.67 Invibio would also often resort to threats to withhold needed supply or regulatory support.68 Through these tactics, Invibio was able to achieve approximately 90 per cent of PEEK sales worldwide, even though Solvay and Evonik offered to sell PEEK at significantly lower prices.69

Under the consent order, Invibio is generally barred from entering into or enforcing any requirement that has the effect of achieving exclusivity, including using pricing terms, setting minimum purchase requirements, and providing retroactive volume discounts.70 However, the consent order would allow Invibio to enter into a exclusivity arrangement to conduct joint research and develop new products or devices, as long as certain conditions are fulfilled.71

1-800 Contacts

In August 2016, the FTC filed an administrative complaint against 1-800 Contacts alleging that the company had entered into unlawful agreements with rival contact lens sellers to eliminate competition in certain online search advertising auctions.72 Specifically, the FTC alleged that around 2004, 1-800 Contacts began sending cease and desist letters to competitors ‘whose search advertisements appeared in response to user queries containing the term ‘1-800 Contacts' (or variations thereof)', claiming in these letters that the competitors were infringing on its trademarks and threatening to sue those companies ‘that did not agree to cease participating in [...] search advertising auctions.'73 Subsequently, between 2004 and 2013, 1-800 Contacts entered into at least 14 agreements with competitors providing that the parties would not bid against one another for advertising space on search engine results pages generated by searches using trademarked terms or variations thereof.74 According to the FTC, however, these agreements went beyond prohibiting trademark infringing conduct because they ‘restrain[ed] a broad range of truthful, non-misleading, and non-confusing advertising', such as user queries regarding cheaper alternatives to 1-800 Contacts.75

In its answer, 1-800 Contacts admitted that it entered into the alleged settlement agreements that ‘prevent[ed] each party from engaging in the unauthorised use of the other's specified trademark terms as keywords for Internet search advertising', but argued that nearly all of the agreements were ‘entered into to resolve bona fide trademark litigation that 1-800 Contacts brought against other contact lens retailers regarding the unauthorised use of 1-800 Contacts' trademarks in Internet search advertising.'76 Among other defences, 1-800 Contacts claimed that, to the extent the antitrust laws apply, its conduct was lawful because the procompetitive benefits of the agreements outweighed any alleged anticompetitive effect and the agreements did not harm competition, consumers, or consumer welfare.77 An administrative trial was held in April 2017 and a decision is forthcoming.

Fortiline

The FTC announced a complaint and executed a consent agreement concerning an invitation to collude between firms that were in both a horizontal and vertical relationship to one another. This was the first time that the Commission had brought an invitation to collude case against an entity that was both a direct competitor with, and a distributor for, the alleged invitee.78 According to the complaint, which charged the company with violating section 5 of the FTC Act, on two occasions in 2010, Fortiline, LLC had expressed dissatisfaction with pricing to a company that served as both a competitor and a supplier.79 Under the consent agreement, Fortiline is prohibited from entering into, attempting to enter into, or soliciting any agreement with any competitor to raise, fix, or stabilise prices or to allocate or divide markets, customers, or business opportunities, with limited exceptions.80

DirecTV/AT&T information sharing agreements

In November 2016, the DOJ filed a complaint against DirecTV Group Holdings, LLC (DirecTV), and its corporate successor, AT&T, Inc (AT&T), alleging that DirecTV unlawfully exchanged competitively sensitive information with rival companies regarding their carriage plans for broadcasting Dodgers games in an effort to increase their leverage in contract negotiations with a certain television channel.81 According to the DOJ, the sharing of this information ‘made it less likely that any of these companies would reach a deal because they no longer had to fear that a decision to refrain from carriage would result in subscribers switching to a competitor that offered the channel.'82 The end result of this conduct was that many consumers in Los Angeles had fewer (or no) ways to watch Dodgers games on television.83 In April 2017, the companies and the DOJ reached a settlement whereby the companies are barred from sharing similar kinds of competitively sensitive information with competitors and are required to implement a training and antitrust compliance programme for their executives and employees during carriage negotiations.84

Endo/Watson Laboratories - reverse payment settlements

In January, the FTC settled its claims against Endo Pharmaceuticals Inc (Endo) regarding Endo's alleged use of pay-for-delay settlements to block access to generic versions of the drugs Opana ER and Lidoderm to maintain its monopoly profits.85 Concurrently, the Commission refiled charges against Watson Laboratories (Watson) and its former parent, Allergan plc, for their alleged involvement in the scheme.86 Originally, the two actions had been filed in March 2016 as a single action in federal court, but the Commission later voluntarily dismissed the case after the court granted the defendants' severance motion.87 According to the FTC, the proposed stipulated order would resolve all of the litigation between the Commission and Endo and would also release Endo from liability stemming from its use of reverse payment settlement agreements related to the branded drug AndroGel.88 The FTC's action against Watson and Allergan plc is currently stayed pending resolution of a challenge to the Commission's authority to bring litigation over past conduct that is no longer occurring or, alternatively, the FTC's authority to seek disgorgement or restitution in any such litigation.89

Notes

  1. Press Release, Department of Justice, FTC and Two State Attorneys General Challenge Proposed Merger of the Two Largest Daily Fantasy Sports Sites, DraftKings and FanDuel (19 June 2017), available at www.ftc.gov/news-events/press-releases/2017/06/ftc-two-state-attorneys-general-challenge-proposed-merger-two?utm_source=slider.
  2. Melissa Lipman, ‘Merger Review to Watch in 2017', Law360 (2 January 2017), available at www.law360.com/articles/937279/ftc-obtains-tro-to-halt-draftkings-fanduel-merger.www.law360.com/articles/872988/merger-reviews-to-watch-in-2017.
  3. Melissa Daniels, ‘FTC Obtains TRO to Halt DraftKings, FanDuel Merger', Law360 (21 June 2017), available at https://www.law360.com/articles/937279/ftc-obtains-tro-to-halt-draftkings-fanduel-merger.
  4. Plaintiff Federal Trade Commission's Motion for and Statement of Points and Authorities in Support of Entry of a Temporary Restraining Order, Federal Trade Commission v DraftKings, Inc., No. 1:17-cv-01195 (19 June 2017).
  5. Press Release, Department of Justice, Justice Department Sues to Block EnergySolutions' Acquisition of Waste Control Specialists (16 November 2016), available at https://www.justice.gov/opa/pr/justice-department-suesblock-energysolutions-acquisition-waste-control-specialists.).
  6. Complaint at 1-2, 4, United States v Energy Solutions, Inc., No. 1:16-cv-01056, at 22-23 (D. Del. 16 November 2016).
  7. Press Release, Federal Trade Commission, Healthcare Provider in St. Cloud, MN Settles FTC Charges That Its Acquisition of Rival Provider Would Likely Lessen Competition for Certain Physician Services (6 October 2016), available at www.ftc.gov/news-events/press-releases/2016/10/healthcare-provider-st-cloud-mn-settles-ftc-charges-its.
  8.  Jeff Montgomery, ‘DOJ Denies Merge Rule Stretch in Radioactive Waste Trial', Law360 (5 May 2017), available at www.law360.com/articles/920946/doj-denies-merger-rule-stretch-in-radioactive-waste-trial.
  9.  Eric Kroh, ‘DOJ Wins Bid to Block $367M Radioactive Waste Cos.' Merger', Law 360 (21 June 2017), available at www.law360.com/competition/articles/937069/breaking-doj-wins-stop-to-367m-merger-of-radioactive-waste-firms?nl_pk=68235943-75d6-4806-ad22-686a9ca0ae41&utm_source=newsletter&utm_medium=email&utm_campaign=competition.
  10. Press Release, Department of Justice, Justice Department and State Attorneys General Sue to Block Anthem's Acquisition of Cigna, Aetna's Acquisition of Humana (21 July 2016), available at www.justice.gov/opa/pr/justice-department-and-state-attorneys-general-sue-block-anthem-s-acquisition-cigna-aetna-s.
  11. Dani Kass, Anthem-Cigna, ‘Aetna-Humana Antitrust Suits Separated', Law360 (5 August 2016), available at www.law360.com/articles/825432?scroll=1.
  12. United States v Anthem, Inc., -- F. Supp. 3d --, 2017 WL 685563, at *50 (D.D.C. 21 February 2017).
  13. United States v Anthem, Inc., 855 F.3d 345, 361 (D.C. Cir. 2017).
  14. Press Release, Anthem Files Petition for a Writ of Certiorari With the U.S. Supreme Court Regarding Acquisition of Cigna, Anthem (5 May 2017), available at http://ir.antheminc.com/phoenix.zhtml?c=130104&p=irol-newsArticle&ID=2270385.
  15. Jeff Montgomery, ‘Anthem Denied Injunction to Keep Cigna in $54B Merger', Law360 (11 May 2017), available at www.law360.com/articles/923204?scroll=1.
  16. Press Release, Anthem Comments on Decision of the Delaware Court of Chancery on Acquisition of Cigna; Terminates Merger Agreement (12 May 2017), available at http://ir.antheminc.com/phoenix.zhtml?c=130104&p=irol-newsArticle&ID=2272685.
  17. Eric Kroh, ‘DOJ Challenges Health Insurance Megamergers', Law360 (21 July 2016), available at www.law360.com/articles/819777/doj-challenges-health-insurance-mega-mergers.
  18. United States v Aetna Inc., -- F. Supp. 3d --, 2017 WL 325198 (D.D.C. 23 January 2017).
  19. Id. at *2.
  20. Id. at *29.
  21. Id. at *59.
  22. Id. at *62.
  23. Id. at *55.
  24. News Release, Aetna and Humana Mutually End Merger Agreement, Aetna (14 February 2017), available at http://investor.aetna.com/phoenix.zhtml?c=110617&p=irol-newsArticle&ID=2245780.
  25. Press Release, Federal Trade Commission, FTC and Pennsylvania Office of Attorney General Challenge Penn State Hershey Medical Center's Proposed Merger with Pinnacle Health System (8 December 2016), available at www.ftc.gov/newsevents/pressreleases/2015/12/ftcpennsylvaniaofficeattorneygeneralchallengepennstate.
  26. FTC v Penn State Hershey Medical Center et al., No. 1:15-cv-02362, Memorandum Opinion & Order, at 11 (M.D. Pa. 9 May 2016).
  27. Federal Trade Commission v Penn State Hershey Medical Center, 838 F.3d 327, 339 (3rd Cir. 2016).
  28. Penn State Hershey Medical Center, 838 F.3d at 340.
  29. Id at 341-42.
  30. Id at 353-54.
  31. Alex Wolf, ‘Pa. Hospital Systems End Merger Plan After 3rd Circ. Defeat', Law360 (14 October 2016), available at www.law360.com/articles/851930.
  32. Penn State Hershey Medical Center, Docket No. 9368, Order Dismissing Complaint (23 October 2016), available at www.ftc.gov/system/files/documents/cases/161023hersheycmpt.pdf.
  33. Press Release, Federal Trade Commission, FTC Challenges Proposed Merger of Two Chicago area Hospital Systems (18 December 2016), available at www.ftc.gov/newsevents/pressreleases/2015/12/ftcchallengesproposedmergertwochicagoareahospitalsystems.
  34. Id.
  35. Federal Trade Commission v Advocate Health Care Network, et al., 841 F.3d 460, 473 (7th Cir. 2016).
  36. Id. at 473-74.
  37. Id. at 471, 475.
  38. Federal Trade Commission v Advocate Health Care, 2017 WL 10220152017, at *4-6 (N.D. Ill. 16 March 2017).
  39. Jessica Corso, ‘Chicago Hospitals Cancel Merger After Loss to FTC in Court', Law360 (7 March 2017), available at www.law360.com/articles/893314/chicago-hospitals-cancel-merger-after-loss-to-ftc-in-court-.
  40. Press Release, Federal Trade Commission, After Two Chicago-area Hospital Systems Abandon Proposed Merger, FTC Dismisses Case form Administrative Trial Process (22 March 2017), available at www.ftc.gov/news-events/press-releases/2017/03/after-two-chicago-area-hospital-systems-abandon-proposed-merger.
  41. Press Release, Federal Trade Commission, FTC Requires Divestitures as Condition to Proposed $13.53 Billion Deal between German Pharmaceutical Boehringer Ingelheim and Paris-based Sanofi (Dec. 28, 2016), available at www.ftc.gov/news-events/press-releases/2016/12/ftc-requires-divestitures-condition-proposed-1353-billion-deal; Kelly Knaub, ‘Boehringer, Sanofi Close Deal As FTC Orders Divestitures', Law360 (3 January 2017), available at www.law360.com/articles/876688/boehringer-sanofi-close-deal-as-ftc-orders-divestitures.
  42. Press Release, Federal Trade Commission, supra note i.
  43. Knaub, supra note 41.
  44. Y Peter Kang, ‘AMC To Become Largest Theater Chain With $1B Carmike Deal', Law360 (3 March 2016), available at www.law360.com/articles/767257.
  45. Press Release, Department of Justice, AMC Required to Divest Movie Theatres, Reduce NCM Ownership and Complete Screen Transfers in Order to Complete Acquisition for Carmike Cinemas (20 December 2016), available at www.justice.gov/opa/pr/amc-required-divest-movie-theatres-reduce-ncm-ownership-and-complete-screen-transfers-order.
  46. Id.
  47. Id.
  48. Id.
  49. Id.
  50. Id.
  51. Jeff Zalesin, ‘FTC Accepts Divestitures for Ball's $7.2B Rexam Deal', Law360 (28 June 2016), www.law360.com/articles/811890/ftc-accepts-divestitures-for-ball-s-7-2b-rexam-deal.
  52. Press Release, Federal Trade Commission, FTC Requires Ball Corporation to Divest Eight Aluminum Can Plants to Ardagh as a Condition of Acquiring Rexam (28 June 2016), available at www.ftc.gov/news-events/press-releases/2016/06/ftc-requires-ball-corporation-divest-eight-aluminum-can-plants.
  53. Id.
  54. Matthew Bultman, ‘EU Approves $7.7B Ball-Rexam Deal With Antitrust Fixes', Law360 (15 January 2016), available at www.law360.com/articles/747087/eu-approves-7-7b-ball-rexam-deal-with-antitrust-fixes; Chelsea Naso, Ball, Rexam ‘Ink $3.2B Divestiture For Antitrust Approval', Law360 (25 April 2016), available at www.law360.com/articles/788329/ball-rexam-ink-3-2b-divestiture-for-antitrust-approval.
  55. Press Release, Department of Justice, Justice Department Requires Anheuser-Busch InBev to Divest Stake in MillerCoors and Alter Beer Distributor Practices as Part of SABMiller Acquisition (20 July 2016), available at www.justice.gov/opa/pr/justice-department-requires-anheuser-busch-inbev-divest-stake-millercoors-and-alter-beer.
  56. Id.
  57. Id.
  58. Press Release, Department of Justice, Lam Research and KLA-Tencor Corp. Abandon Merger Plans (5 October 2016), available at www.justice.gov/opa/pr/lam-research-corp-and-kla-tencor-corp-abandon-merger-plans; Chelsea Naso, ‘Jones Day Steers Lam Research's $10.6B KLA-Tencor Buy', Law360 (21 October 2015), available at www.law360.com/articles/716889/jones-day-steers-lam-research-s-10-6b-kla-tencor-buy.
  59. Press Release, Department of Justice, supra note 58.
  60. Id.
  61. Id.
  62. Press Release, Department of Justice, Deere Abandons Proposed Acquisition of Precision Planting from Monsanto (1 May 2017), available at www.justice.gov/opa/pr/deere-abandons-proposed-acquisition-precision-planting-monsanto.
  63. Id.
  64. Id.
  65. Complaint at 3, In the Matter of Victrex plc, Docket No. C- 141-0042 (F.T.C. 27 April 2016).
  66. Id. at 4.
  67. Id.
  68. Id.
  69. Id. at 3-4.
  70. Dec. and Order, supra note 1, at 6, 8 (F.T.C. 14 July 2016).
  71. Id. at 9.
  72. Complaint at 1, In the Matter of 1-800 Contacts, Inc., Docket No. 9372 (F.T.C. 8 August 2016).
  73. Id. at 4.
  74.  Id. at 4-5.
  75. Id. at 5.
  76. Answer and Defenses to Administrative Complaint, supra note 7, at 5 - 6 (F.T.C. 29 August 2016).
  77. Id. at 8.
  78. Press Release, Fed. Trade Comm'n, FTC Consent Order Protects Competition in Ductile Iron Pipe Industry (9 August 2016), available at www.ftc.gov/news-events/press-releases/2016/08/ftc-consent-order-protects-competition-ductile-iron-pipe-industry.
  79. Complaint at 3-4, In the Matter of Fortiline, LLC, Docket No. C-4592 (F.T.C. 23 September 2016).
  80. Decision and Order, supra note 14, at 3 (F.T.C. 23 September 2016).
  81. Complaint at 2-4, United States v DirecTV Group Holdings LLC,. No. 2:16-cv-08150 (C.D. Cal. 2 November 2016), ECF No. 1.
  82. Id. at 4.
  83. Id. at 10.
  84. Proposed Final Judgment, supra note 17, at 4 - 5 (C.D. Cal. 23 March 2017), ECF No. 31-1.
  85. Press Release, Fed. Trade Comm'n, Endo Pharmaceuticals Inc. Agrees to Abandon Anticompetitive Pay-for-Delay Agreements to Settle FTC Charges; FTC Refiles Suits Against Generic Defendants (23 January 2017), available at www.ftc.gov/news-events/press-releases/2017/01/endo-pharmaceuticals-inc-agrees-abandon-anticompetitive-pay-delay.
  86. Id.
  87. Id.
  88. Id.
  89. Order Granting Stay at 1, Fed. Trade Comm'n v. Allergan plc, No. 17-cv-00312-WHO (N.D. Cal. 5 April 2017).

 

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