Archives: Premerger Notification

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FTC Accepts Practical ‘Failing Firm’ Defense in Ending Challenge of Nonreportable Transaction

The Federal Trade Commission’s recently announced proposed settlement of its challenge of CentraCare Health’s acquisition of St. Cloud Medical Group (SCMG) is doubly noteworthy. The settlement ends the challenge of a transaction that apparently was not reportable under the Hart-Scott-Rodino (HSR) Act, and the settlement is premised on a “failing firm” defense that infrequently is … Continue Reading

To Report or Not to Report, That Is the CFIUS Question

By Danyll Foix on February 16, 2015 Posted in CFIUS, Government Investigations, Merger, Merger Review, Premerger Notification

With the complexities inherent in many cross-border transactions – from cultural differences to the growing number of competition authorities demanding paperwork – the last thing one may want to think about is whether to submit a voluntary report of a transaction to the Committee on Foreign Investment in the United States (CFIUS). The recent decision … Continue Reading

What is the CFIUS: Information to Know When Doing Transactions with Foreign Parties

By Danyll Foix on November 3, 2014 Posted in CFIUS, Government Investigations, Merger, Merger Review, Premerger Notification

U.S. Senator Debbie Stabenow’s recent and much publicized unveiling of legislation to expand the CFIUS review process of transactions likely caused businesspeople everywhere to ask: “What’s the CFIUS?” In short, the Committee on Foreign Investment in the United States (“CFIUS”), comprised of high-level Washington bureaucrats, reviews certain domestic transactions involving foreign parties and determines or recommends … Continue Reading

To Report, or Not to Report, Your Non-Reportable Transaction Is the Question

By Jonathan Lewis and Lee Simowitz on May 1, 2014 Posted in Government Investigations, Merger, Merger Review, Premerger Notification

Just because a proposed transaction does not have to be reported in advance to the Department of Justice (“DOJ”) or the Federal Trade Commission (“ FTC”) because it falls below the Hart-Scott-Rodino (“HSR”) Act size of transaction threshold (currently$75.9 million), you are not out of the woods. The growing list of companies defending antitrust challenges … Continue Reading

Connecticut’s Attorney General Wants to Know in Advance if You Are Going to Join Forces with a Healthcare Provider

By Jonathan Lewis and Lee Simowitz on April 24, 2014 Posted in Government Investigations, Healthcare, Legislation, Merger Review, Premerger Notification

Back in early 2013, Connecticut’s Attorney General (“AG”) formed a “Health Care Competition Working Group” within his office to examine the potential impact of horizontal mergers (e.g., hospital to hospital) and vertical provider acquisitions (i.e., hospitals buying up physician practices) “may have on the pricing, quality, and access to health care for Connecticut’s consumers and … Continue Reading

Pharmaceutical Association Calls Out FTC in Filing Seeking to Enjoin New Rule Targeting the Industry

By Jonathan Lewis and Lee Simowitz on February 13, 2014 Posted in Government Investigations, Healthcare, Patents, Premerger Notification

Last November, the Federal Trade Commission (“FTC”) with the “concurrence” of the Antitrust Division of the Justice Department, and over the strenuous objection of Pharmaceutical Research and Manufacturers of America (“PhRMA”), issued final changes to the Hart-Scott-Rodino Act premerger notification rules limited solely to pharmaceutical industry. Those special rules relate to the transfer of certain … Continue Reading

Past as Prologue: Rebirth of the Merger Trial and the Bazaarvoice Case

By Lee Simowitz, Jonathan Lewis and Judy Gechman on January 21, 2014 Posted in Antitrust Litigation, Government Investigations, Merger, Merger Review, Premerger Notification, Sherman Act 7

For many years after its implementation, the Hart-Scott-Rodino Antitrust Improvements Act of 1976 seemed to sound the death knell of post-consummation merger trials. By establishing a file-and-wait system rather than the old catch-me-if-you-can non-system, the Act enabled the antitrust enforcement agencies to prevent the consummation of potentially anticompetitive mergers until they completed their investigation, and … Continue Reading

Thresholds Do Matter – Choosing too Low a Threshold in an Ordinary Course of Business Provision Can Up Your Risk of “Gun Jumping”

By Jonathan Lewis and Judy Gechman on January 15, 2014 Posted in Government Investigations, Merger Review, Premerger Notification

Soon after someone settles “gun jumping” charges, client alerts with informative titles like “DOJ Settlement Resolves ‘Gun Jumping’ Charges” start flying around. These “alerts” usually recite facts alleged in the complaint, say ordinary course of business provisions are typically fine, but consult an antitrust lawyer to make sure yours are okay. But few (if any) … Continue Reading

Fix My Merger – Lessons from FTC Bureau Director Feinstein on the Use of Consent Orders to Remedy Anticompetitive Mergers

By Jonathan Lewis and Lee Simowitz on September 18, 2013 Posted in Government Investigations, Merger Review, Premerger Notification

In her first speech since becoming Director of the Federal Trade Commission’s Bureau of Competition, Deborah Feinstein highlighted five benefits arising from addressing antitrust violations through consent orders and dispelled a number of “persistent myths” about their use. While emphasizing the FTC “employs a rigorous case-by-case approach to law enforcement decisions,” Director Feinstein explained that … Continue Reading

FTC Investigations of Technology Transactions – Am I at Risk?

By Jonathan Lewis and Lee Simowitz on September 10, 2013 Posted in Government Investigations, Merger, Merger Review, Premerger Notification, Uncategorized

A recent article in the Antitrust Law Journal, “A Survey of Evidence Leading to Second Requests at the FTC,” by Darren S. Tucker, a FTC attorney advisor who reviewed non-public information on decisions to investigate proposed transactions for the period August 2008 to August 2012, sheds light on the types of evidence the FTC staff … Continue Reading

FTC Investigations of Pharma and Medical Device Transactions – Am I at Risk?

By Jonathan Lewis and Lee Simowitz on August 19, 2013 Posted in Healthcare, Merger, Merger Review, Premerger Notification

A recent article in the Antitrust Law Journal titled “A Survey of Evidence Leading to Second Requests at the FTC,” by Darren S. Tucker, an attorney advisor to a FTC Commissioner who reviewed non-public information on the decisions to investigate proposed transactions for the period August 2008 to August 2012, sheds light on the types … Continue Reading

FTC Investigations of Energy and Chemical Transactions – Am I at Risk?

By Jonathan Lewis and Lee Simowitz on August 6, 2013 Posted in Government Investigations, Merger, Merger Review, Premerger Notification

A recent article in the Antitrust Law Journal, “A Survey of Evidence Leading to Second Requests at the FTC,” by Darren S. Tucker, an attorney advisor to a FTC Commissioner who reviewed non-public information on the decisions to investigate proposed transactions for the period August 2008 to August 2012, gives insight on the types of … Continue Reading

Will the FTC Investigate My Provider Healthcare Transaction?

By Jonathan Lewis and Lee Simowitz on July 30, 2013 Posted in Government Investigations, Healthcare, Merger, Merger Review, Premerger Notification

FTC Seeks to Undo Another Small, Completed Transaction

By Danyll Foix on July 25, 2013 Posted in FTC Act, Merger, Merger Review, Premerger Notification

This week, the FTC announced a proposed consent agreement to alter another completed transaction that was too small to be reported under the Hart-Scott-Rodino Act (“HSR Act”). The FTC’s complaint alleged that Solera Holdings Inc. and Actual Systems of America, Inc., through their subsidiaries, were competing providers of yard management systems software (“YMS”) used by automotive recycling … Continue Reading

“Wide-Ranging Investigation” Leads FTC and Idaho AG to Join Ongoing Antitrust Lawsuit Challenging Acquisition of Idaho’s Largest Independent, Multi-Specialty Physician Group

By Jonathan Lewis and Lee Simowitz on March 19, 2013 Posted in FTC Act, Government Investigations, Healthcare, Premerger Notification

After dodging an attempt by two of its competitors to stop the closing of its acquisition of Saltzer Medical Group (“Saltzer”)—a for-profit, physician-owned, multi-specialty group comprising approximately 44 physicians located in Nampa, Idaho—St. Luke’s Health System (“St. Luke’s”) must now also fend off the FTC’s and Idaho AG’s joint effort to unwind that transaction. On … Continue Reading

Buyer Beware: Increase in HSR Thresholds Does Not Mean Your Non-Reportable Transaction is Safe

By Judy Gechman on February 5, 2013 Posted in Merger, Merger Review, Premerger Notification

The purpose of the Hart-Scott-Rodino Act (“HSR Act”) Act is to preserve the agencies’ ability to investigate competitive consequences of a transaction before closing, provide an opportunity to obtain an effective remedy, and reduce the likelihood that competition will be reduced during the HSR waiting period. Even if there is no competitive overlap, the HSR … Continue Reading