Joseph G Krauss
Updates
Competition & Antitrust
For whom the agreement tolls: how a typical tolling agreement cost Duke Energy Corporation $600,000
USA | 16 February 2017Although tolling agreements are increasingly common in the energy industry, parties that have or may have an interest in acquiring the other party to the agreement must be careful to avoid assuming beneficial ownership of the target before complying with the Hart-Scott-Rodino reporting requirements if Hart-Scott-Rodino notification is required. Failure to do so may result in the tolling agreement constituting evidence of gun jumping and the acquiring person being subject to significant penalties.
Hart-Scott-Rodino and interlocking directorate thresholds announced for 2017
USA | 09 February 2017The Federal Trade Commission released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Section 7A of the Clayton Act, known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as well as for Section 8 of the act. The new filing thresholds for Hart-Scott-Rodino notification will become effective 30 days after publication in the Federal Register, while the revisions to Section 8 will become effective immediately on publication in the register.
New Hart-Scott-Rodino and interlocking directorate thresholds announced
USA | 04 February 2016The Federal Trade Commission recently released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Section 7A of the Clayton Act, known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976, and for Section 8 of the Clayton Act. Both changes should be effective by the end of February 2016.
Merger, they wrote: FTC issues merger investigation survival guide
USA | 10 September 2015The Federal Trade Commission Bureau of Competition recently released a revised set of best practices for merger investigations. These new best practices re-emphasise several strategic and effective ways for parties to avoid the burden or cost of a second request and reaffirm that the most productive way to do so is to engage with staff on the relevant issues as early as practicable.
FTC issues maximum penalty for violation of pre-merger notification requirements
USA | 18 September 2014Berkshire Hathaway Inc recently agreed to a settlement with the Federal Trade Commission for allegedly violating the pre-merger reporting requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 . The settlement highlights the need for vigilance in monitoring compliance under the act and for companies to consider the filing requirements for all types of transaction.
Antitrust implications of cybersecurity information sharing clarified
USA | 08 May 2014The Department of Justice and Federal Trade Commission recently issued a joint policy statement on the antitrust implications of sharing cybersecurity information to help facilitate the flow of cyberintelligence throughout the private sector. The statement addresses the long-standing concern that sharing cyberintelligence may violate antitrust law under certain circumstances.
New Hart-Scott-Rodino and interlocking directorate thresholds announced for 2014
USA | 06 February 2014The Federal Trade Commission has released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Section 7A and 8 of the Clayton Act. Under the Hart-Scott-Rodino Act, certain acquisitions of assets, voting securities or interests in non-corporate entities are subject to pre-merger notification filing and waiting period requirements.
Judge rules non-reportable, consummated merger violates antitrust law
USA | 30 January 2014On January 8 – one year since the filing of the lawsuit and 18 months since the merger closed – a US federal judge declared that Bazaarvoice violated the Clayton Act by acquiring its main rival, PowerReviews. The $168 million deal was challenged even though PowerReviews was too small to require a pre-merger notification filing with the federal antitrust enforcers.
New reporting requirements for pharmaceutical patent transfers
USA | 19 December 2013The Federal Trade Commission recently announced final changes to the Hart-Scott-Rodino Act rules regarding acquisitions of exclusive patent rights in the pharmaceutical industry. The revised rules, which apply only to transfers of pharmaceutical patent rights, will increase the number of licensing arrangements in the pharmaceutical industry that will be subject to the act's pre-closing filing and waiting period requirements.
Updated model confidentiality waiver for use in cross-border investigations
USA | 17 October 2013The Federal Trade Commission and the Department of Justice recently issued an updated joint model waiver of confidentiality for use by parties in cross-border merger and civil non-merger investigations. It outlines the terms under which a party subject to a multi-jurisdictional investigation may waive its confidentiality protections in order to facilitate the sharing of confidential information between US and non-US competition authorities.
FTC hands down another fine for violation of pre-merger filing requirements
USA | 25 July 2013The Federal Trade Commission has announced the filing of another civil complaint for violation of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. The complaint serves as another reminder of the importance of consulting with Hart-Scott-Rodino counsel before the acquisition of voting securities, assets or controlling interests in partnerships or limited liability companies.
Kansas legislature overrides state court departure from Supreme Court precedent
USA | 23 May 2013The Kansas legislature recently enacted a law that re-establishes that resale price maintenance (RPM) agreements are subject to a rule-of-reason analysis under Kansas antitrust law. The legislation was a direct response to a Kansas Supreme Court decision which held that contrary to a leading US Supreme Court's decision, RPM agreements are still considered per se unlawful under Kansas antitrust law.
FTC amends Hart-Scott-Rodino and Clayton Act jurisdictional thresholds
USA | 24 January 2013The Federal Trade Commission has released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Section 7A of the Clayton Act, known as the Hart-Scott-Rodino Antitrust Improvements Act 1976, as well as for Section 8 of the Clayton Act. The new thresholds for Hart-Scott-Rodino notification will become effective on February 11 2013.
FTC finalises new rules on non-adjudicative investigations and attorney conduct
USA | 18 October 2012The Federal Trade Commission recently announced final changes to its internal Rules of Practice regarding Part 2 (non-adjudicative) investigations and attorney conduct. The new rules are intended to streamline investigations and keep up with advances in e-discovery. Of most interest is a new rule that expressly permits agency staff to disclose the existence of an investigation.
FTC announces Hart-Scott-Rodino and Clayton Act jurisdictional threshold changes
USA | 09 February 2012The Federal Trade Commission recently released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Section 7A of the Clayton Act. Under the act, acquisitions of assets, voting securities or interests in non-corporate entities are subject to pre-merger notification filing and waiting period requirements if the applicable jurisdictional thresholds are satisfied and no exemption applies.
Federal Trade Commission announces changes to jurisdictional thresholds
USA | 10 February 2011The Federal Trade Commission recently released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Section 7A of the Clayton Act, known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as well as for Section 8 of the Clayton Act. The new Hart-Scott-Rodino thresholds will take effect on February 24, while the Section 8 revisions came into force on January 25.
FTC proposes significant amendments to Hart-Scott-Rodino form
USA | 09 September 2010The Federal Trade Commission recently published proposed amendments to the Hart-Scott-Rodino rules, form and instructions. Some of the proposed amendments are designed to streamline the form and make Hart-Scott-Rodino filings less burdensome. Others are designed to capture information not currently requested in the Hart-Scott-Rodino form, which may increase the burden for certain filing parties.
FTC announces changes lowering jurisdictional thresholds
USA | 25 February 2010The Federal Trade Commission has released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Sections 7A (known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976) and 8 of the Clayton Act. This year, due to the economic downturn, both sets of thresholds have decreased.
FTC clears Pfizer/Wyeth and Merck/Schering-Plough with divestitures
USA | 18 February 2010The Federal Trade Commission has issued a consent order providing that in order for Merck & Co, Inc and Schering-Plough to complete a proposed $41.1 billion combination, Merck must sell its interest in Merial Limited, an animal health joint venture with Sanofi-Aventis SA, and Schering Plough must sell its assets related to significant drugs for nausea and vomiting in humans.
FTC Commissioners Issue Duelling Statements over Cancelled Merger
USA | 29 October 2009In response to an announcement by Endocare, Inc terminating its proposed merger with Galil, Ltd because of delays in the Federal Trade Commission (FTC) review of the transaction, several FTC commissioners have taken the unprecedented step of issuing contrary statements on the causes for the delayed review.
CSL Scraps Talecris Acquisition in Response to FTC Complaint
USA | 01 October 2009Facing a Federal Trade Commission (FTC) complaint alleging that their proposed combination violated federal antitrust laws, CSL Limited and Talecris Biotherapeutics Holdings Corporation have announced that they have mutually agreed to terminate their merger agreement. The FTC had alleged that the merger would violate the Clayton Act and the Federal Trade Commission Act.
Changes to Hart-Scott-Rodino and Clayton Act Jurisdictional Thresholds
USA | 05 February 2009The Federal Trade Commission has released the annual jurisdictional adjustments both for pre-merger notification filings made pursuant to Section 7A of the Clayton Act, known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976, and for Section 8 of the Clayton Act.
Annual Review of Hart-Scott-Rodino and Clayton Act Jurisdictional Thresholds
USA | 14 February 2008The Federal Trade Commission has announced new jurisdictional thresholds for pre-merger notification filings made pursuant to Section 7A of the Clayton Act, known as the Hart-Scott-Rodino Antitrust Improvements Act (1976), and for Section 8 of the Clayton Act. The former will take effect on February 28 2008; the new thresholds for Section 8 of the Clayton Act became effective on January 18 2008.
FTC Challenges Merger of Spinal Treatment Competitors
USA | 24 January 2008The Federal Trade Commission (FTC) recently challenged Kyphon’s acquisition of the spinal assets of Disc-O-Tech Medical Technologies, Ltd and Discotech Orthopedic Technologies, Inc on the grounds that it would be anti-competitive. As a result, Kyphon agreed to divest all assets relating to the Confidence system to an FTC-approved buyer.
FTC Challenges 2005 Purchase Agreement as a Naked Restraint
USA | 24 January 2008The Federal Trade Commission (FTC) has issued a complaint alleging that two dialysis clinic operators - American Renal Associates, Inc (ARA) and Fresenius Medical Care Holdings, Inc - unlawfully restrained competition in violation of Section 5 of the FTC Act when ARA paid Fresenius to close clinics located near competing ARA clinics in Rhode Island and Massachusetts as a part of a 2005 asset purchase agreement.
Hart-Scott-Rodino Act: Item 4(c) Matters!
USA | 08 November 2007Iconix Brand Group has agreed to pay a civil penalty of $550,000 to settle charges from the Department of Justice that it failed to produce certain documents in connection with its acquisition of Rocawear as required by the Hart-Scott-Rodino Act. The matter serves as a reminder that neglecting Item 4(c) obligations can have serious repercussions.
FTC Orders Divestiture in Actavis/Abrika Merger
USA | 31 May 2007As in similar prior mergers the Federal Trade Commission has defined a separate product market for generic drugs in allowing Actavis Group hf's proposed acquisition of Abrika Pharmaceuticals Inc to go forward. The consent order requires the companies to divest all rights and assets required to make and market generic isradipine capsules.
Antitrust a Factor in Caremark Choosing CVS over Express Scripts
USA | 31 May 2007The takeover battle between Express Scripts and CVS Corporation for Caremark Rx Inc is an example of how competing offerors can use antitrust clearance as a tool to gain an advantage over one another. Caremark's shareholders accepted a bid which had received antitrust clearance over a higher bid which was still attracting scrutiny.
FTC Announces Changes to Clayton Act Jurisdictional Thresholds
USA | 08 February 2007The Federal Trade Commission has announced new jurisdictional thresholds for pre-merger notification filings made pursuant to the Hart-Scott-Rodino Antitrust Improvements Act 1976 and Section 8 of the Clayton Act. The new Section 8 thresholds are already in force, while the new Hart-Scott-Rodino thresholds will take effect on February 21 2007.
Round-Up of M&A Antitrust Developments in 2006
USA | 01 February 2007During 2006 the Federal Trade Commission implemented a series of reforms to the merger review process. In addition, in conjunction with the Department of Justice it issued the Commentary on the Horizontal Merger Guidelines, which sought to increase the transparency of the agencies' decision-making processes.
Federal Trade Commission Reforms Merger Process
USA | 30 March 2006The Federal Trade Commission has responded to concerns that the second request process is too burdensome. The new policies are a good start and address some of the core problems with the merger review process, but open and honest communication between the agency staff and the parties will be required to ensure that the benefits of these reforms are realized.
Changes to Hart-Scott-Rodino Notification Thresholds
USA | 09 February 2006The Federal Trade Commission recently announced new jurisdictional thresholds for pre-merger notification filings made pursuant to the Hart-Scott-Rodino Antitrust Improvements Act. Under the act, certain acquisitions in non-corporate entities are subject to pre-merger notification filing and waiting period requirements if the applicable jurisdictional threshold tests are satisfied and no exemption applies.
Hart-Scott-Rodino Rules Apply to Restricted Stock Grants
USA | 07 July 2005The Federal Trade Commission (FTC) has long held that executives and employees who acquire voting securities of the US company for which they work may have a filing obligation under the Hart-Scott-Rodino Antitrust Improvements Act 1976. In a recent interpretation the FTC indicated that these filing obligations apply even when executives receive restricted stock grants as part of a compensation system.
Amendment of Hart-Scott-Rodino Rules Triggers New Reporting Obligations
USA | 17 March 2005New rules under the Hart-Scott-Rodino Antitrust Improvements Act aim to reconcile the current disparate treatment of corporations and unincorporated entities. The rules will affect the reporting requirements related to acquisitions of interests in partnerships, limited liability companies and other unincorporated entities that are consummated after the rules take effect.
Changes to Hart-Scott-Rodino Notification Thresholds Announced
USA | 24 February 2005The Federal Trade Commission has announced new jurisdictional thresholds for pre-merger notification filings made pursuant to the Hart-Scott-Rodino Act. The new thresholds will not affect the amount of the applicable Hart-Scott-Rodino filing fees to be paid, but will affect the threshold levels applicable to each of the filing fees.
Coordinated Effects Analysis in Mergers
USA | 09 October 2003Firms that propose a merger or acquisition in an industry with a history of past collusion should expect increased scrutiny both in the United States and in Europe. The recent flurry of Department of Justice complaints emphasizing evidence of past collusion demonstrates its importance in coordinated effects analysis. However, evidence of past collusion can be overcome.
Hart-Scott-Rodino Clearance Does Not Guarantee Immunity
USA | 31 July 2003A recent Federal Trade Commission (FTC) ruling shows that that antitrust clearance under the Hart-Scott-Rodino Act does not provide immunity from future investigation and intervention into a consummated merger or acquisition. The decision marks the first time that the FTC has obtained an order breaking up a consummated deal that previously was reviewed and had received clearance under the act.
Antitrust Division Files Complaint for Hart-Scott-Rodino Breaches
USA | 27 March 2003The Department of Justice Antitrust Division has brought a complaint against a company which it believes erroneously relied on the investment-only Hart-Scott-Rodino exemption when it acquired minority interests in another corporation without first filing a Hart-Scott-Rodino notification report and observing the relevant waiting period.
US and EU Authorities Announce Greater Cooperation on Mergers
USA | 28 November 2002The Federal Trade Commission and the European Union have announced best practices to enhance cooperation between the agencies in merger investigations. The best practices provide explicit guidance to merging parties on how the agencies intend to coordinate the review of transactions that may raise competition issues on both sides of the Atlantic.
Federal Trade Commission Amends Hart-Scott-Rodino Rules
USA | 11 April 2002Among other changes to the Hart-Scott-Rodino rules, the Federal Trade Commission has restored the full five-year exemption period for acquisitions of voting securities that follow a pre-February 1 2001 notification filing and that do not meet or exceed a greater notification threshold.
