Nov

30

Posted by : Matthew Wild | On : November 30, 2008

On November 25, 2008, the FTC issued an administrative complaint challenging the proposed merger between CCC Information Services and Mitchell International.  The FTC alleges that “the merger would hinder competition in the market for electronic systems used to estimate the cost of collision repairs, known as “estimatics,” and the market for software systems used to value passenger vehicles that have been totaled, known as total loss valuation (TLV) systems. The FTC’s administrative complaint alleges that the merger, which is valued at $1.4 billion, would harm insurers, repair shops and, ultimately, U.S. car owners by reducing from three to two the number of competitors in the two related businesses.”  FTC CCC-Mitchell Press Release  The FTC claims that with the existence of high barriers to entry, the merger would allow the combined firm to raise prices to its customers unilaterally as well as allow the remaining two firms to collude and raise prices.  Absent extraordinary circumstances, the agencies will challenge mergers to duopoly.  The posture of this challenge is interesting.  The FTC issued the administrative complaint and approved commencement of action in federal court to seek a temporary restraining order and preliminary injunction but has not commenced such an action.  The parties must have consented to delay closing or the HSR waiting must not have yet expired.  These actions are usually brought at the very end of the waiting period and parties do not routinely consent to delay their mergers.  It would be interesting to know what happened here.

Oct

24

Posted by : Matthew Wild | On : October 24, 2008

On October 20, 2008, the Antitrust Division, Colorado, Iowa, Kansas, Minnesota, Missouri, Montana, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Texas and Wyoming sued to enjoin JBS Beef’s acquisition of National Beef Packing in the United States District Court for the Northern District of Illinois.  (Beef Complaint; Beef Press Release)  The government alleges that the merger would combine the third and fourth largest U.S. beef packers, which would result in lower prices for cattle and higher prices for beef consumers.  This action is interesting in two respects.  First, one of the theories of competitive harm is that the beef packers will gain monopsony power.  While the monopsony theory is well established and has been pursued in Antitrust Division challenges to mergers (e.g., Cargill’s acquisition of Continental Grain’s Commodity Marketing Group), some academics reject it because it is inconsistent with the monopsonist’s economic interest to drive prices so low that suppliers exit.  Second, although venue and personal jurisdiction were available in any district where the companies did business, the government chose the Chicago as its forum.  It likely did so because it has received favorable treatment there in the past and Seventh Circuit cases are favorable to merger challenges.  For example, the government prevailed in United States v. UPM Kymmene Oyj (a case in which this author was trial counsel) even though the government’s case was at best shaky and viewed by many as without merit.

Jul

29

Posted by : Matthew Wild | On : July 29, 2008

Today, the D.C. Circuit reversed the district court’s decision that denied a preliminary injunction in the Whole Foods/Wild Oats merger. FTC v. Whole Foods Markets, Inc., No. 07-5276 (D.C. Cir. July 29, 2008) (Whole Foods decision). Crucial to the decision was the D.C. Circuit’s holding that the FTC might have been able to establish a submarket consisting of premium natural and organic supermarkets.

The case was remanded to the district court and one of the questions was whether there was some remedy available during the pendency of the FTC administrative proceedings. The D.C. Circuit noted that the FTC complained of adverse effects on competition in only eighteen different local markets. The D.C. Circuit also noted that neither party discussed whether sufficient distribution facilities were available for Wild Oats to remain a viable competitor and if only one Wild Oats store can re-open that would be better than nothing. The D.C. Circuit suggested a hold separate order, which seems to imply that the assets would be carved out and transferred from Whole Foods to a trustee. This begs the question, however, of who would (and could) manage the store(s) independent of Whole Foods.

Ultimately, it seems like Whole Foods can expect to lose the administrative proceedings. If it does, Whole Foods may have to divest stores in these markets. The Supreme Court long ago held that divestiture is the preferred remedy. Neither the courts nor the agencies favor rescission.

Jun

21

Posted by : Matthew Wild | On : June 21, 2008

On May 28, 2008, the Antitrust Division required divestitures as a condition of its approval of Cengage Holdings’ $750 million proposed acquisition of Houghton Mifflin College Division. Both companies publish college textbooks. The Antitrust Division defined the relevant product market as textbooks in courses on particular subject matters. The Antitrust Division alleged that students had no significant alternatives to new textbooks in these courses because, for example, used textbooks are not consistently available in large numbers. The Antitrust Division limited the relevant geographic market to the United States but did not explain why foreign publishers could not compete effectively. The Antitrust Division calculated that in 14 overlapping courses, the minimum post-merger HHI would be 3,000 with a delta of 500. The Antitrust Division concluded that high barriers to entry exist because instructors infrequently switched textbooks and therefore it would be unlikely that a publisher would invest in the authors and editorial staff necessary to write a new textbook. The Antitrust Division’s Press Release and Competitive Impact Statement are attached. DOJ Press Release (Cengage/Houghton Mifflin); Competitive Impact Statement (Cengage/Houghton Mifflin).

Mar

26

Posted by : Matthew Wild | On : March 26, 2008

March 24, 2008. The Antitrust Division cleared the merger between XM Satellite Holdings and Sirius Satellite Radio — the only satellite radio providers. In its closing statement, the Antitrust Division concluded that it would be unlikely that the parties could raise prices post-merger. The Antitrust Division noted that the parties do not compete for current customers because the costs of equipment makes switching to the other provider impractical. The Antitrust Division concluded that relevant market for new customers would have to include alternative sources for audio entertainment in addition to satellite radio. The Antitrust Division further noted that future technology would only increase the competition faced by the parties. With respect to competition for sole source contracts with major auto manufacturers, those contracts are locked-in and there is unlikely to be any competition for those contracts for many years. Finally, the Antitrust Division noted that the transaction would result in substantial efficiencies (and cost savings) which further supported its conclusion that the transaction would not harm competition.

Mar

10

Posted by : Matthew Wild | On : March 10, 2008

March 4, 2008. On July 10, 2007, Altivity Packaging LLC (“Altivity”) and Graphic Packaging International, Inc. (“Graphic”) announced their plans to merge in a transaction valued at $1.75 billion. Altivity and Graphic are the first and fourth largest manufacturers (respectively) of coated recycled boxboard (“CRB”) in the United States and Canada. Post-merger, the combined firm would control 42% of the CRB supply in North America. CRB is used to make products such as cereal boxes. The Antitrust Division also alleged high barriers to entry and expansion. Accordingly, the Antitrust Division required the parties to divest 11% of their capacity to a new entrant. The Antitrust Division was satisfied that such a divestiture would replace any loss in competition resulting from the merger. The DOJ Press Release and Competitive Impact Statement are attached.  DOJ Press Release (Altivity); Competitive Impact Statement (Altivity)  This has been a very active day for the Antitrust Division. Earlier in the day, the Antitrust Division challenged the Cookson/Foseco transaction.