Alerts

New FTC and DOJ Horizontal Merger Guidelines Signal More Aggressive Approach to Enforcement

04.28.10

Last week, the U.S. Department of Justice and Federal Trade Commission released proposed revisions to their Horizontal Merger Guidelines. The agencies are soliciting input on the proposals through May 20, 2010, before they are made final. The guidelines, introduced in 1992 and last revised in 1997, provide insight into the DOJ and FTC's analysis of proposed mergers between competitors and are intended to allow lawyers and their clients to better predict when a proposed transaction will be challenged. The guidelines do not, however, have the force of law and are not legally binding on the courts that ultimately determine whether a particular merger violates antitrust laws.

FTC Chairman Jonathan Leibowitz has indicated that the proposed revised guidelines are intended to give companies more clarity on when enforcement actions will be brought. They are designed to more accurately reflect the way the FTC and DOJ currently conduct merger reviews. However, consistent with the Obama administration's promises to more vigorously enforce antitrust laws, the proposed revised guidelines appear to give the DOJ and FTC more flexibility to challenge mergers. Last spring, Christine A. Varney, Assistant Attorney General in charge of the Antitrust Division, promised that "… the Antitrust Division will be aggressively pursuing cases where monopolists try to use their dominance in the marketplace to stifle competition and harm consumers."

The current guidelines focus on defining the relevant markets impacted by a proposed transaction. Merger cases have become battles between economic experts to define the relevant product and geographic market and the impacts of the merger on those markets. Several cases brought by government regulators in the last few years have foundered on the failure to define properly the relevant market. For example, the FTC challenged the merger of Whole Foods Inc. and Wild Oats Markets Inc., claiming that it would impact competition in the market for "premium, natural and organic supermarkets." Whole Foods contended that a properly defined market would include all supermarkets. When the FTC sought a preliminary injunction to block the merger, the U.S. District Court for the District of Columbia agreed that the FTC's proposed definition was too narrow and denied the request for an injunction. Although the U.S. Court of Appeals for the D.C. Circuit ultimately reversed the district court's opinion and Whole Foods settled the case, commentators believe that the case, and others like it, have caused the FTC and DOJ to seek a shift away from the sometimes difficult market definition issues.

The "unifying theme" of the new proposed revised guidelines "… is that mergers should not be permitted to create, enhance, or entrench market power or to facilitate its exercise." The proposed revised guidelines state that the agencies will not use a single methodology for evaluating proposed mergers, but instead will use a variety of tools to analyze whether a merger may substantially lessen competition. They also state that "market definition is not an end itself or a necessary starting point of merger analysis …" Rather than start with a focus on the relevant market, the proposed revised guidelines state that the agencies will look for evidence that a proposed merger "... is likely to encourage one or more firms to raise price, reduce output, diminish innovation, or otherwise harm consumers as a result of diminished competitive restraints or incentives."

Utilizing evidence from the merging parties, other competitors, customers, suppliers and other market participants, the FTC and DOJ will consider whether: a) an already consummated merger has had, or is likely to have, adverse competitive effects; b) recent mergers, entry, expansion or exit in the relevant market have had an impact on competition; c) the transaction will cause an increase in market shares and concentration in the relevant market; d) the merging firms are substantial head-to-head competitors; and e) the merger will eliminate a "maverick" firm that will play a disruptive role to the benefit of consumers.

Although some commentators do not believe that the proposed revised guidelines represent a sea change in the evaluation of mergers between competitors, others believe that they will lead to a more aggressive enforcement approach. Whichever view turns out to be correct, merging competitors will need to focus on more than the definition of the relevant market. Instead, they will need to be prepared to present evidence supporting the argument that the proposed transaction does not adversely impact competition.

If you are interested in learning more, please contact Mark W. Bayer (mbayer@gardere.com or 214.999.4521) or Randy D. Gordon (rgordon@gardere.com or 214.999.4527).

The publications contained in this site do not constitute legal advice. Legal advice can only be given with knowledge of the client's specific facts. By putting these publications on our website we do not intend to create a lawyer-client relationship with the user. Materials may not reflect the most current legal developments, verdicts or settlements. This information should in no way be taken as an indication of future results.

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