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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Conclusion As has been seen, the U. C March 13, Decision and Order perylene assets to be divested to Ciba Specialty Chemicalsavailable at http: The consent order allowed the FTC to appoint an interim monitor if necessary,93 although the FTC ultimately chose not to do so. We note that Section 7 may also be enforced by private parties and State attorneys general pursuant to 0510241 4 and 16 of the Clayton Act.

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 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.

It created an incentive within the [selling firm] to make the order work in the way intended by the Commission.

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The DOJ prevailed despite the existence of a fix-it-first remedy. 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.

After the FTC authorized its staff to seek a preliminary injunction blocking the deal on the ground that the acquisition would enable Libbey to exercise market power in the food service glassware market, the parties amended their merger agreement to exclude most but not all of the Anchor Hocking food service business.

Differences Between the DOJ and the FTC While there are many similarities in merger remedies policy and practice, there are significant differences between the DOJ and FTC that can and not infrequently do have a real world impact on how quickly merging parties can complete their transaction and achieve the procompetitive efficiencies of their transactions.


A Summary of Case Studies. Whatever the reason for the differences, the divergent approaches to certain key consent decree issues have real world consequences for merger parties. 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.

Both agencies will generally allow the parties the opportunity independently to market the assets to be divested. The Staff studied 35 consent orders that involved 50 divestitures in the aggregate. 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.

It may be that a more conservative approach to merger remedies is correlated with the existence of a separate staff whose sole purpose is to address remedy compliance issues. How Can We Remedy It?

II. Goal of Antitrust Remedies

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. Grossman to oversee the xylon NDT businessavailable at http: If a merger has been consummated, the goal would be to restore competition to the level where it was prior to the anticompetitive merger.

Digene was the only company in the U. C June 15,available at http: Both the DOJ and FTC prefer structural relief to conduct restrictions, heavily employing divestiture as a remedy while limiting conduct relief to narrow circumstances.

Such differences from industry to industry, rather than any fundamental difference in analytical approach to remedies, may best explain why U.

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Senate, July 24, Structure and Functions of Competition Authority. Csselist 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.

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. Finally, the court considering the consent decree must determine whether the consent decree is in the public interest. While both agencies require the parties to enter into hold separate orders, the agencies diverge with respect to the appointment of interim trustees. Consent orders entered into with the DOJ typically contain an obligation to preserve assets, generally requiring the parties to take all steps necessary to preserve the divestiture assets 051214complaint not to take any actions that would jeopardize the divestiture.


II. Goal of Antitrust Remedies

DOJ approval requires satisfying three fundamental tests. Following public allegations regarding improper conduct with regard to DOJ settlements as part of the Watergate scandal, inCongress enacted the Tunney Act, formally known as the Antitrust Procedures and Penalties Act.

Both agencies will closely examine proposed buyers to ensure that qualified buyers are selected and such 05102214 have the incentive, experience, and ability to utilize the divested assets to restore competition in the market.

Such voluntary restructuring of a merger may 0510214complaaint 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. By acquiring Digene, Cytyc would have been in a position to foreclose its only existing competitor by limiting access to Digene’s HPV test. In fact, invirtually all FTC consent orders required upfront buyers.

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This lack, this industry ignorance, is not the result of carelessness, of a 0510214complaibt to perform due diligence, or of poor judgment; it is an inherent characteristic of entering a new business. 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.

A review of consent orders confirms that the FTC has frequently used upfront buyer provisions in cases involving divestitures of assets that had not previously operated as a separate business.

Buckeye was acquiring from Shell a package of refined petroleum pipeline and terminal assets.