word-to-pdf-programmatically www-ftc-gov-os-caselist complaint-pdf www-va-gov-vaforms-medical-pdf xmcd-to-pdf-online. , FTC. Docket No. C, Complaint (January 20, ), available at In the Matter of Barr Pharmaceuticals, Inc., File No. , FTC Docket No.

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The judicial guidance as to remedies comes from litigated cases in the pre-Hart-Scott-Rodino Act era when the government generally learned about anti-competitive mergers only after they were consummated. Finally, the court considering the consent decree must determine whether the consent decree is in the public interest.

Procedural History While both the Antitrust Division and the FTC are authorized to settle merger challenges without having to litigate, the authority on which each agency can do so differs. Because the FTC and the Division have such long-time experience in certain major industries, we have developed approaches to remedies that rely upon that experience and that recognize 0510214complaont particular structural differences that mergers in those industries present.

Following the initial comment period, the FTC may either withdraw its acceptance of the agreement, modify the proposed 0512014complaint order, or issue a final decision and order.

How Can We Remedy It? For example, the agencies 0510214cmoplaint generally dubious when research and development assets are excluded from the divestiture, although this may be deemed acceptable where the buyer has its own research and development capability concerning the relevant products or such services are readily available from a third party. The FTC required a consent order to memorialize the retention of these plants by Goodman and to address any potential future sales of these plants by Goodman to other parties.

Firewalls and fair dealing provisions are frequently That is not to say that there have not been successful attempts to block vertical mergers outright.

Section, Houston, Texas, April 17,available at http: In re Allergan, File No. However, the Staff only examined 37 of the 50 divestitures embodied in those 35 05100214 decrees.

For instance, the FTC Divestiture Study noted that there may be instances where the divestiture of an on-going business is undesirable because it will destroy efficiencies of a merger. Both the DOJ and FTC prefer structural relief to conduct restrictions, heavily employing divestiture as a remedy while limiting conduct relief to narrow circumstances.

Today, both agencies have a stated policy that the divestiture must be accomplished quickly, so that when divestitures are allowed to be undertaken after consummation of the merger,39 the specified period normally ranges from three to six months although there have been instances where a shorter period is imposed,40 and there are still occasions where 12 months is deemed acceptable.

II. Goal of Antitrust Remedies

The consent order required Buckeye to notify the FTC of any intention to acquire an interest in the Niles terminal czselist required Shell caseelist notify the FTC of any intention to sell any interest in that terminal, both for a period of ten years. On the other hand, the merger can result in significant cost savings that would benefit consumers in the form of price decreases or quality improvements, and the prospects of obtaining an injunction blocking the entire deal may be low.


Second, the DOJ must be satisfied that the purchaser has the incentive to use the divestiture assets to compete in the relevant market rather than for some other purpose such as use in a different relevant market. In such cases, a consent decree may require the seller to enter into a short-term supply agreement with the buyer, which can help 0501214complaint the loss or weakening of the divested assets during the transitional period.

A Summary of Case Studies. If a merger cadelist been consummated, the goal would be to restore competition to the level where it was prior to the anticompetitive merger.

We note that Section 7 may also be enforced by private parties and State attorneys general pursuant 0512014 Sections 4 and 16 of the Clayton Act. This arises, for example, when the relevant products are marketed and distributed along with other products.

Once a proposed buyer is identified, each agency will conduct an independent investigation to evaluate the proposed buyer, which often includes interviewing the proposed buyer as well as customers, suppliers 0510214compplaint, on occasion, competitors. Both agencies will closely examine proposed buyers to ensure that qualified buyers are selected and such buyers have the incentive, experience, and ability to utilize the divested assets to restore competition in the market.

Goal of Antitrust Remedies The principal law under which the U. Monitor Trustees When a divestiture will take place after the parties have consummated their merger, both agencies require that the parties hold the divestiture assets separate and maintain them in the ordinary course so that a viable business can be divested. 0510214fomplaint August 30, Decision and orderavailable at http: Buyers who have not operated in the industry are at a severe disadvantage in defining what assets they need and determining whether they are receiving all the assistance to which they are entitled.

C April casepist, Decision and Order requiring divestiture of laboratory services assets to LabCorpavailable at http: The DOJ statement must be filed along with the proposed consent decree and must be published in the Federal Register at least sixty days before the decree becomes final. Examples include the divestiture of stand alone assets such as a single vaselist or a geographically connected set of assets such as a group of terminals and a related pipeline.

With the passage of the Hart-Scott-Rodino Antitrust Improvements Act inthe agencies less often face the circumstances where 05102114complaint transaction has to be unwound. First, a buyer that already has a significant presence in the relevant market often will not be deemed appropriate. While both agencies require the parties to enter into hold separate orders, the agencies diverge with respect to the appointment of interim trustees.


Agency staff will require the buyer to produce financial and strategic business information as part of this review. These exceptions include where the restriction serves as an adjunct to structural relief, as a stand-alone remedy in regulated industries, and in remedying concerns regarding vertical mergers.

Especially in orders that require the divestiture of less than an entire business, the buyers lack important information about the business that is being divested.

Whatever the reason for the differences, the divergent approaches to certain key consent decree issues have real world consequences for merger parties. The FTC filed a 0510214cmoplaint on July 27,in federal district court in Hawaii, seeking to enjoin that acquisition on two caselust The FTC uses upfront buyer provisions frequently.


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Buckeye was acquiring from Shell a package of refined petroleum pipeline and terminal assets. Nonetheless, there are significant differences in remedial policy when it comes to requiring upfront buyers, considering fix-it-first remedies, the inclusion of crown jewel provisions, and the use of interim monitors. One example where the FTC required the parties to enter into a consent order even after they had restructured their transaction is the transaction between Buckeye Partners and Shell Oil Company.

When the Commission votes to commence a proceeding, it commences an administrative proceeding governed by the provisions of the FTC Act. In public statements, the FTC has articulated a preference for an upfront buyer when the parties are divesting a package of assets that has not previously operated as an autonomous business.

Such voluntary restructuring of a merger may involve the sale of a subsidiary, business unit, division or some other package of assets to a third-party that the merger parties believe should eliminate any potential competitive problems resulting from the proposed merger. FTC Chairman Deborah Platt Majoras, one of the very few people to have served in senior positions at both agencies under the same President, recently offered a rationale for the divergent approaches of the two agencies: These provisions such as interim monitors and crown jewel provisions are discussed at pages 18 – 30, supra.

Goal of Antitrust Remedies advertisement. Chapter 8 Operational Data Tools. Agency insistence on an up-front buyer provision often causes delay of several months in completing the merger depending upon how long it takes to find a buyer and negotiate a contract of sale acceptable to the reviewing agency. Requiring merging parties to promise not to engage in certain conduct can be contrary to the economic incentives of the parties and can result in market inefficiencies.

In fact, invirtually all FTC consent orders required upfront buyers.

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