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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By acquiring Digene, Cytyc would have been in a position to foreclose its only existing competitor 0510241 limiting access to Digene’s HPV test.

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. According to the U. 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.

II. Goal of Antitrust Remedies

To the contrary, the FTC has a long history of using crown jewel provisions starting with occasional uses as early of the s. 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. Both the DOJ and FTC prefer structural relief to conduct restrictions, heavily employing divestiture as a remedy while limiting conduct relief to narrow circumstances.

While both agencies require the parties to enter into hold separate orders, the agencies diverge with respect to the appointment of interim trustees. 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.

Under the Tunney Act, the DOJ is required to prepare a competitive impact 051014complaint, describing, among other things, the case and the relief sought in the consent decree, evaluating alternative remedies actually considered, and cqselist remedies available to private injured parties and procedures available for modifying the proposal.


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. Grossman to oversee the xylon NDT businessavailable at http: Once a proposed buyer is identified, each agency will conduct an independent investigation to evaluate the proposed buyer, which often includes interviewing the proposed buyer as well as customers, suppliers and, on occasion, competitors.

Such differences from industry to industry, rather than any fundamental difference in analytical approach to remedies, may best explain why U. Monitor Trustees When a divestiture will take place after the parties have consummated their merger, both agencies require that the parties hold the divestiture assets separate and maintain them in the ordinary course so that a viable business can be divested.

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.

C September 29, consent decree contained firewall and fair dealing provisionsavailable at http: C March 13, Decision and Order perylene assets to be divested to Ciba Specialty Chemicalsavailable at http: 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.

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 05100214complaint small container commercial waste-hauling services.

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Section, Houston, Texas, April 17,available at http: The FTC imposes similar requirements. Both Agencies Prefer Structural Remedies In horizontal merger cases, both the DOJ and the FTC have strong preferences for structural remedies such as the divestiture of one of the two overlapping businesses. The consent order required Buckeye to notify the FTC of any intention to acquire an interest in the Niles terminal and required Shell to notify the FTC of any intention to sell any interest in that terminal, both for a period of ten years.


Examples include the divestiture of stand alone assets such as a single refinery or a geographically connected set of assets such as a group of terminals and a related pipeline.

It appears that [the divestiture buyer, known as] Firm 30, and probably many others, benefited from the existence of a crown jewel provision.

In addition, the Study suggests: Such voluntary restructuring of a merger may involve the sale of a subsidiary, business unit, division or some other package of assets to a 0510214co,plaint that the merger parties believe should eliminate any potential competitive problems resulting from the proposed merger. DOJ approval requires satisfying three fundamental tests. The agencies 32 Id. The Staff studied 35 consent orders that involved 50 divestitures in the aggregate.

DOJ Policy Guide, at With the passage of the Hart-Scott-Rodino Antitrust Improvements Act inthe agencies less often face the circumstances where a transaction has to be unwound. There are several reasons why it is more common to find conduct relief in vertical mergers than in horizontal transactions.

At the same cwselist, the FTC will publish an analysis of the proposed consent order to aid the public. Rather than indifference or hostility that is exhibited by some ccaselist firms], this [selling firm] had an internal reason to see the divestiture succeed.