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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For example, in the merger of Nestle Holding, Inc. C April 3, Decision and Order, at p. Senate, July 24, 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.
Both the DOJ and FTC prefer structural relief to conduct restrictions, heavily employing divestiture as a remedy while limiting conduct relief to narrow 010214. For instance, the DOJ may require a rapid divestiture when it believes critical assets may deteriorate quickly or there will be significant competitive harm before the assets are transferred to the purchaser.
Documents Flashcards Grammar checker. When the Commission votes to commence a proceeding, it commences an administrative proceeding governed by the provisions of the FTC Act.
II. Goal of Antitrust Remedies
Both agencies include provisions in consent orders requiring the trustee to use its best efforts to sell the assets at the most favorable price, but ultimately divestiture trustees are obligated to sell the assets at any price.
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: Goal of Antitrust Remedies The principal law under which the U.
The two agencies apply similar tests assessing whether to approve a proposed buyer. This lack, this industry ignorance, is not the result of carelessness, of a failure to perform due diligence, or of poor judgment; it is an inherent characteristic of entering a new business.
The parties were obligated to make the divestiture within 20 days from the closing on the acquisition.
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. This arises, for example, when the relevant products are marketed and distributed along with other products. Since the FTC and DOJ purport to apply the same substantive standards and they have common stated goals in seeking remedies, it is not surprising that there are many similarities in the merger remedy positions of the two agencies.
Grossman to oversee the xylon NDT businessavailable at http: The DOJ prevailed despite the existence of a fix-it-first remedy. 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. We note that Section 7 may also be enforced by private parties and State attorneys general pursuant to Sections 4 and 16 of the Clayton Act.
Vertical mergers often involve a scenario where a formerly independent buyer of a critical input acquires the producer of the input, vertically integrating into one firm a customer and a supplier. While both agencies require the parties to enter into hold separate orders, the agencies diverge with respect to the 0510214complanit of interim trustees.
Both Agencies Prefer Structural Remedies In horizontal merger cases, both the DOJ and the Caseoist have strong preferences casdlist structural remedies such as the divestiture of one of the two overlapping businesses.
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.
It appears that [the divestiture buyer, known as] Firm 30, and probably many others, benefited from the existence of a crown jewel provision. Section, Houston, Texas, April 17,available at http: Finally, conduct relief has been used in addressing the competitive issues raised by vertical mergers. The Divestiture Study notes that proposed buyers must be given adequate time and an opportunity to conduct full due diligence.
For example, the agencies are 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 imposes similar requirements. DOJ Policy Guide, at In such cases, the Divestiture Study suggested that the FTC should include provisions in consent decrees to attempt to reduce the risks that a buyer of a partial business will not be viable following the divestiture.
II. Goal of Antitrust Remedies
July 6, Competitive Impact Statement, at 15available at http: 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. Agency staff will require the buyer to produce financial and strategic business information as part of this review. 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.
In addition to requiring the merging parties to divest small container commercial waste hauling assets, the proposed consent decree also requires Waste Industries to shorten its existing and future contracts for small container commercial waste-hauling services.
Buckeye was acquiring from Shell a package of refined petroleum pipeline and terminal assets. 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 the particular structural differences that mergers in those industries present.
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. Both agencies will generally allow the parties the opportunity independently to market the assets to be divested.
Finally, the court considering the consent decree must determine whether the consent decree is in the public interest. In re Nestle Holding, Inc. 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.
Consequently, conduct relief has been permitted in mergers involving firms in the telecommunications and defense industries in view of significant regulatory oversight by the Federal Communications Commission and the Department of Defense, respectively. In contrast, the FTC generally disfavors a fix-it-first approach, and often insists on the execution of a consent decree because this gives the FTC a greater say in the selection of the divestiture assets and buyer and the implementation of the divestiture.
These provisions such as interim monitors and crown jewel provisions are discussed at pages 18 – 30, supra.