Articles Posted in Mergers & Acquisitions

Sculpture Man Controlling Trade

This 1942 sculpture by Michael Lantz, 17-feet long, is meant to suggest a heroic figure (the FTC) restraining violent and untamed American commerce.

Author: Steven Levitsky

If you liked the old computer game, “Minesweeper,” then you’re ready to take on Hart-Scott-Rodino (HSR) filings for antitrust review of mergers & acquisitions. Both have rules. And both can produce unexpected catastrophes even if think you’re following the rules. In fact, major clients, advised by major law firms, have been hit with hundreds of thousands of dollars in fines for mistakes that no one thought of at the time.

Let’s start with the 50,000 foot view of HSR compliance. You might know the basics: (a) you need to make an HSR filing when one side of the transaction has sales or assets of at least $16.9 million; (b) the other side has sales or assets of at least $168.8 million; (c) the transaction size is greater than $84.4 million; and (d) no exemptions apply. (These are 2018 figures).

An example to consider

Here’s an example of how things can work out badly. Let’s assume you get a call from the CEO of your client, Alpha Co. Alpha Co. is a small and relatively new company and the CEO tells you:

  1. Alpha’s annual sales and assets are $15 million.
  2. Alpha plans to buy $80 million of the voting securities of Bravo Ltd. (Alpha’s borrowing $65 million to do the deal.)
  3. Based on this, he wants to know if they need to make an HSR filing.

Applying what you know, you conclude that the “size-of-person” and “size-of-transaction” tests are both not met, so no HSR filing is required. Alpha Co. goes ahead and closes the deal.

Three months later, your client hears from the FTC. The FTC tells them that they violated the HSR Act by not filing, and that the fine is $41,484 per day, or $3,733,560 in all. What went wrong? (We’ll explain in detail in Point 2.)

But generally, what went wrong is that the 50,000 foot view is not enough. HSR rules are extremely technical and, some would say, not exactly logical. A lot of HSR terms don’t have a common sense meaning. You need to check and cross-reference the definitions and rules. And these, by the way, are not organized in any friendly or rational way, but seem to read like the Tax Code.

Here are some basic HSR concepts that might help you avoid the worst minefields.

  1. What are the basic HSR tests?

There are two tests to see if a filing is required.

First, “size-of-person.” Normally, you don’t need to file for the antitrust enforcers unless one side of the deal has sales or assets of at least $16.9 million and the other side has sales or assets of at least $168.8 million. (This are 2018 figures; these numbers change every February.)

But, as we’ll see soon in Point 2, the size-of-person test does not mean the size of the transaction party. Instead, it means the size of the buyer’s entire business group, or everything under the control of its highest entity (see §5). Don’t fall into the trap of measuring an incomplete control group.

Second, the “size-of-transaction” must be over $84.4 million (again, this is 2018; the numbers change every February). But there are several other filing thresholds that cover more purchases in the same target and could require successive filings. These include $168.8 million; $843.9 million; 25% of the target — but only if the size-of-transaction is more than $1.688 million; and 50% of the target — or control. Once you get control, you can buy as much more of the target as you want without ever filing again.

But, as we’ll see soon in Point 2, the “size-of-transaction” does not really mean the size of the transaction. Instead, it means (1) the combination of existing holdings and planned acquisitions, (2) that the entire buyer control group will have in the target control group after the deal closes (see §2). This includes voting stock acquired years before, that has to be analyzed at its current value. Don’t fall into the trap of measuring the wrong amount.

  1. What is an “ultimate parent entity” and why does it matter?

The “ultimate parent entity” is the top controlling entity of an entire business group.

The “ultimate parent entity” matters to your antitrust filing for the following reason. The purpose of the HSR filing system is to let the antitrust agencies know of significant shifts in competitive power. As a result, they don’t care about the names on the contract, which may be only small subs or special purpose vehicles. The antitrust agencies want to know what is really happening in terms of changes of competitive power.

To give the agencies that information, you must identify the entire control group of your transaction party. You do this by tracing control upwards from the transaction party (Alpha Co., in our case) to the very highest control level of the business group. That entity at the top, that isn’t controlled by anyone else, is the “ultimate parent entity,” which can be a company or an individual. The “ultimate parent entity” makes the filing. Its collective size and holdings affect the “size-of-person” and “size-of-transaction” tests we discussed in Point 1.

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Antitrust News is a new feature at The Antitrust Attorney Blog. We will periodically report on and address new developments in the antitrust world, from FTC or DOJ guidance to important court decisions to relevant legislative developments to worldwide antitrust issues.

Although some of our prior articles involve antitrust developments, most of these posts consist of content that is less timely and more evergreen. Our intent is to help our readers by describing Antitrust News through the filter of our antitrust expertise.

On November 16, 2017 in Washington, DC, Deputy Assistant Attorney General Donald G. Kempf, Jr. made news about antitrust merger review at the American Bar Association’s Antitrust Fall Forum.

Kempf said—simply—that the DOJ will try to shorten the time it takes it to review mergers for antitrust and competition issues. In 2011, the average merger took just over 7 months to review. In 2016, the review time increased to 11.6 months on average.

That is unacceptable. Companies that want to merge should not have to wait almost full year to do so. A lot can happen in a year, particularly now where technology and low entry barriers mean that entire markets often change in a short period of time.

How did the excess delays happen?

To explain, let’s back up and explain—briefly—how an antitrust merger review works:

The merging parties begin by completing what is called a Hart-Scott-Rodino (HSR) filing. Either the DOJ or FTC has 30 days to decide whether to issue what is called a second request. If one of the antitrust agencies thinks that there could be genuine competition issues for the merger, they may issue this second request, which opens up a heavy set of fact-finding, including document production.

At some point, the antitrust agencies may either approve the merger, reach an agreement with the parties to approve the merger with certain requirements (like selling assets) or (in the case of the DOJ) to seek a preliminary injunction stopping the merger.

According to Kempf, over time the second request period increased in scope and complexity and the preliminary injunction hearings became mini-trials. Indeed, they often have the same effect as a trial on the merger because if the DOJ wins, the parties often abandon the merger. If the DOJ loses, it often halts the challenge.

Kempf went on to articulate why shortening merger review time is so important. His best line was that “delaying competitive mergers is anticompetitive, and that’s not the business the Antitrust Division wants to be in. Just the opposite.”

He offered five suggestions to shorten antitrust merger reviews: Continue reading →

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We are ecstatic that Steve Levitsky agreed to join us in New York. It isn’t every day that an antitrust attorney of Steve’s caliber becomes available, let alone fits so perfectly into a law firm’s approach, culture, and plans. But that is the happy situation in which we find ourselves.

You can read our press release about the move here. And you can read Steve Levitsky’s impressive biography here.

As you can tell, I am very excited about this next chapter in Bona Law’s history. As you can see, we now have two offices: La Jolla, California and New York, New York.

Bona Law is an antitrust boutique firm. Our client base has been worldwide for quite some time and we have had cases and other matters all over the country. So the move to add a New York office doesn’t change our focus: We have always been a national antitrust boutique firm.

But I think opening our New York office signals to the marketplace more directly that we are a national law firm that competes with biglaw for antitrust. And adding Steve to our team—with his decades of big firm antitrust experience and worldwide client base—confirms our place.

Steve Levitsky’s antitrust experience includes the big three of litigation, antitrust counseling, and antitrust merger work. But what is even more exciting for us is that Steve is particularly known for his antitrust merger expertise, which is an area in which I have much less experience.

Over the last few years, I have heard repeatedly that many companies that have an HSR filing or other antitrust merger issues are frustrated that they don’t options other than big law firms. Well, now they do: Steve has managed the antitrust side of countless complex merger transactions, domestic and global—many of them worth over $10 billion.

So if you are a corporate attorney or business with antitrust merger or acquisition issues, you should contact Steve.

Steve has such an impressive background that he would, frankly, fit in at any law firm. He would substantially raise the average quality of the attorneys no matter where he would have gone. Our traditional press release and website article goes into his background, so I am not going to repeat it here.

I enjoy writing articles for The Antitrust Attorney Blog because it allows greater flexibility in what I tell you. I try to offer some of the informal truths relating to antitrust and law practice that, although vitally important, are not usually discussed so straightforwardly.

So, obviously, adding Steve to our team is a huge deal because he is a great lawyer. But my excitement about this move goes well beyond that obvious point.

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Cable Net NeutralityAn article in the Wall Street Journal caught my eye: “FCC Questions AT&T Over Investment Pause: Company Freezes Plans to Build Ultrafast Internet Service.” The reason for the pause is the FCC’s flirtation with the idea of net neutrality.

A government policy of net neutrality would require internet service providers—like broadband companies—to enable access to all content and applications no matter the source and without additional charges for particular products or websites.

This debate is in the news lately because of the issue of whether cable companies that control broadband should be able to charge extra to content companies like Netflix that make greater use of the broadband, or to offer content companies a faster and better route that isn’t available to other companies (for a price, of course). The FCC has been debating this policy, and the issue is wrapped up in the FCC and DOJ’s review of the Comcast-Time Warner merger. President Obama recently came out in support of net neutrality, which adds pressure on the FCC to adopt the policy.

So where does AT&T fit into this?

They are in the process of gaining approval to purchase the satellite company, Direct TV, which is a competitor to the broadband services from cable companies like Comcast and Time Warner. After President Obama issued a statement supporting net neutrality, AT&T announced that it would freeze plans to build ultrafast Internet service in light of new uncertainty around the government’s net-neutrality policy.

Here is the problem: Net neutrality turns broadband service into a more commoditized business. If you are in the business, you must charge everyone equally—the content providers that is—which means there is substantially less room for innovation.

Right now the cable companies offering broadband have substantial market power because they offer the fastest broadband to customers in each locality. Substantial resources over time have built-up the necessary framework and connections to offer broadband service to customers.

When a business becomes commoditized, there are fewer aspects of competition. That is, the product is substantially the same no matter where you get it, so price becomes the biggest area of competition. Businesses then compete by innovating on how to reduce costs and building economies of scale, which usually reduces costs. They do not, however, innovate on improving the quality of the product because, by definition, the product is the same.

If the FCC were to require a net-neutrality policy, it would remove substantial areas of potential competition between the entrenched monopolist broadband (i.e. cable) companies and potential competitors. So competition would primarily be based on cost reduction, which usually comes down to economies of scale.

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Antitrust SuperheroSome lawyers focus on litigation. Other lawyers spend their time on transactions or mergers & acquisitions. Many lawyers offer some sort of legal counseling. And another group—often in Washington, DC or Brussels—spend their time close to the government, usually either administrative agencies or the legislature.

But your friendly antitrust attorneys—the superheroes of lawyers—do all of this. That is part of what makes practicing antitrust so fun. We are here to solve competition problems; whether they arise from transactions, disputes, or the government, we are here to help. Or perhaps you just want some basic advice. We do that too—all the time.

Perhaps you are a new attorney, or a law student, and you are considering what area to practice? Try antitrust and competition law. Not only is this arena challenging and in flux—which adds to the excitement—but you also don’t pigeonhole yourself into a particular type of practice. You get to do it all—your job is to understand the essence of markets and competition and to help clients solve competition problems.

For those of you that aren’t antitrust attorneys, I thought it might be useful if I explained what it is that we do.

Litigation

Although much of our litigation is, in fact, antitrust litigation, much of it is not. In the business v. business litigation especially, even in cases that involve an antitrust claim, there are typically several other types of claims that are not antitrust.

Businesses compete in the marketplace, but they also compete in the courtroom, for better or worse. And when they do, their big weapon is often a federal antitrust claim (with accompanying treble damages and attorneys’ fees), but they may also be armed with other claims, including trade secret statutes, Lanham Act, patent, tortious interference (particularly popular in business disputes), unfair competition, unfair and deceptive trade practices, and others.

In many instances, in fact, I will receive a call from a client that thinks they may have an antitrust claim. Perhaps they read this blog post. Sometimes they do, indeed, have a potential antitrust claim. But in other instances, an antitrust claim probably won’t work, but another claim might fit, perhaps a Lanham Act claim for false advertising, or tortuous interference with contract, or some sort of state unfair trade practice claim.

Antitrust lawyers study markets and competition and are the warriors of courtroom competition between competitors. If you have a legal dispute with a competitor, you should call your friendly antitrust attorney.

Antitrust litigation itself is great fun. The cases are usually significant, document heavy, with difficult legal questions and an emphasis on economic testimony. Some of them even involve class actions.

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BlackjackSo here’s an idea. Let me know what you think: A hedge fund or other investment vehicle centered on antitrust analysis.

I’ll explain.

As you might know, I am an antitrust attorney. And I write a blog on antitrust and competition law. So, as you may expect, I follow antitrust developments somewhat obsessively at times. As a result, I have a good sense of the practical antitrust implications of certain cases, investigations, or prospective mergers.

I don’t have a crystal ball or anything. Nor do I have any inside information. And since human beings—judges or agency officials—make the relevant decisions, nobody can actually predict what will happen.

But by now, I can review a complaint or a motion to dismiss or description of facts and have a good sense of the strength and risk of the antitrust issues. I think I also have a decent idea how the major antitrust agencies—the FTC and Department of Justice—focus their priorities and like to resolve investigations, cases, and mergers. Like I said, I can’t predict anything with certainty, but there is a high learning curve for antitrust (probably more than most specialties) and I’ve spent a lot of time and effort climbing that curve.

Enough about me—for now anyway.

Let’s talk about antitrust and company stock performance. The obvious scenario is a merger. Two companies, perhaps competitors, announce a merger or acquisition. It isn’t a dead-on-antitrust-arrival merger between the first and second leading companies in a product and geographic market that is easily defined. Instead, it is the sort of merger where the markets are somewhat complicated, perhaps in flux, and it isn’t entirely clear whether an antitrust agency will challenge it or a court will stop it.

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Dollar signWhen you are a law student, you don’t usually understand that most cases are just one of several business tools that are companies utilize to advance their interests in the marketplace.

You might think that cases are academic-like exercises that reach either trial or some appellate court (perhaps after a motion-to-dismiss or summary-judgment motion). One or the other party or both are seeking justice and will not rest until the case terminates. That’s not a surprise, really, because much of what you do in law school is read such cases. I guess that is why many law students want to become appellate attorneys.

But the reality is that—as much as lawyers like myself like to view the law through an academic lens—a lawsuit or threat of a lawsuit is often just a way for someone to seek leverage. The claim is real and is serious, but litigating the case to termination is usually a last resort. The best result is often a settlement—the earlier the better.

Lawyers don’t like to talk about that much because unless you are on a contingency fee an early settlement means less money for the attorney. But it is the truth; lawyers are not special, really. What we do in litigation is often just another business tool to advance our client’s position in the marketplace. There are exceptions, of course—cases where justice must be done—but most commercial litigation doesn’t fall into that category.

Most of commercial litigation is a negotiating tool.

And an antitrust claim is a particularly large (and effective) bat when it comes to leverage.

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Global AntitrustJust because your company isn’t based in the United States doesn’t mean it can ignore US antitrust law. In this interconnected world, there is a good chance that if you produce something, the United States is a market that matters to your company.

For that reason, I offer five points below that attorneys and leaders for non-U.S. companies should understand about US antitrust law.

But maybe you aren’t from a foreign company? Does that mean you can click away? No. Keep reading. Most of the insights below matter to anyone within the web of US antitrust law.

This article is cross-posted in both English and French at Thibault Schrepel’s outstanding competition blog Le Concurrentialiste

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Cable MergerAntitrust attorneys do everything that a lawyer can do: They litigate in both courts and agencies; they counsel clients; and they participate in mergers & acquisitions. If you are a young lawyer or law student that can’t decide what type of legal activity you like best, try antitrust and competition law—you can do it all.

In the mergers & acquisitions category, antitrust’s most recent obsession is the deal between Comcast Corp. and Time Warner Cable., Inc.

Competition Policy International (CPI) was kind enough to ask me to write a few words expressing my thoughts, and you can read them here. You can view the other Comcast-TWC articles from the CPI Antitrust Chronicle here.

I won’t go into a lot of detail because you can read the actual article (which is less than five pages), but I thought I’d provide a little introduction into my thinking.

Usually in these circumstances, you will see commentary on one side stating that, of course, the merger should be approved, maybe even “as is.” On the other side, you will read analyses that the world will fall apart if the merger is not blocked forever.

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