Competition Matters

Have a good plan for HSR compliance

Our recent civil penalty action involving Berkshire Hathaway’s failure to file the required Hart-Scott-Rodino notification is a reminder to investors to be alert to common filing mistakes. It is also a reminder that every investor—companies and individuals alike—needs to have a program in place to ensure compliance with HSR filing obligations.

How to avoid common HSR filing mistakes on affidavits and notice letters

The PNO handles Hart-Scott-Rodino Premerger Notification Filings for well over a thousand transactions each year. When you submit an HSR Form with all the required information, the PNO can quickly review the filing, and if necessary, forward it to the investigative staff who will focus on determining whether the acquisition presents competitive issues that warrant further review.

Putting the “mod” in order modification

Back in 1998, the must-have toy was a Furby, and if you were a parent with a kid of a certain age, you had to find one. In those days, Toys “R” Us was the nation’s largest toy retailer, and the company attracted antitrust attention when it announced that it would stop carrying toys made by any manufacturer that sold the same toys to discount club stores, such as Costco. That policy would have prevented nearby club stores from carrying the same Furby sold at Toys “R” Us (creating problems for that parent hoping to avoid a toddler meltdown).

Running time

“The clock” is a central part of a merger lawyer’s life. HSR merger review is all about managing the clock effectively. Here are some things we’ve been known to say: Is the clock running? When does the clock start? How much time is on the clock? 

Sometimes brick & mortar competition is enough

When the Federal Trade Commission looks at competition in the retail sector today, it typically considers the significance of online sales. Sometimes the competition from online retailers drives the analysis. In closing the Office Depot-Office Max matter, the Commission pointed to “the explosive growth of online commerce, which has had a major impact” on the sale of office supplies.

Merger review by the numbers

Today the FTC and DOJ released the 36th Annual Hart-Scott-Rodino Report, a document full of interesting data about federal merger review. The report covers transactions in which the merging parties filed HSR notification between Oct. 1, 2012 to Sept. 30, 2013, and federal merger enforcement actions during the same time period. Here are some notable numbers from the report:

May management moves in BC

Once again, I have the privilege of announcing that some incredibly talented lawyers in the Bureau have been promoted to management positions. 

The Anticompetitive Practices Division, which handles the Bureau’s enforcement efforts against anticompetitive conduct in industries other than health care, has two new Deputy Assistant Directors:

Who decides how consumers should shop?

Consumers once shopped predominantly at their local stores; but first mail order catalogs and today the Internet have created new ways to shop for and purchase a wide range of goods and services. Similarly, consumers once arranged for taxis by hailing one from a street corner or by calling a dispatcher; yet today, smartphones and new software applications are shaking up the transportation industry, creating new business opportunities and new services for consumers.

New security procedures for HSR filers

These procedures have been changed as of May 1. Please see the new instructions for delivering HSR filings.

Do bike messengers read blogs about Hart-Scott-Rodino? Maybe not. But anyone who needs to file a HSR premerger notification form after April 25 should read on for information about how to deliver filings at the PNO’s new home on the fifth floor of the Constitution Center.

Getting around town in the share economy

One of the most vibrant areas of recent economic development has been the “share economy.” Facilitated by popular smartphones and animated not only by economics, but also by many people’s interest in expanding social networks, peer-to-peer (P2P) software applications now facilitate services from shopping to local accommodations.

Promoting procedural fairness through the ICN

Engagement in multilateral dialogue and consensus building is a cornerstone of the FTC’s international antitrust program, and our active involvement in the International Competition Network (ICN), a collaborative network of antitrust agencies from 111 jurisdictions around the world, is at the heart of this work. The FTC is a founding member of the ICN and serves on the ICN’s Steering Group.

The fix is (not) in: lessons from the Ardagh case

The FTC recently accepted a proposed settlement that would end its litigation to prevent Ardagh Group SA’s proposed acquisition of Saint-Gobain Containers, Inc. from reducing competition in the glass container industry. The proposed consent agreement requires Ardagh to divest six of its nine U.S.

Traditions and change

Spring is a special time in Washington. Since the first trees were planted around the Tidal Basin in 1912, viewing the cherry blossoms has become a Washington tradition.

Another spring tradition: the Bureau Director’s annual report to the gathering of antitrust lawyers and economists in town for the ABA’s Antitrust Law Spring Meeting. This year, it is my privilege to report on the activities and accomplishments of the Bureau’s 300 lawyers and support staff. 

A good deal

On any given Sunday in Illinois, consumers can do their weekly shopping at various “brick and mortar” stores or turn to online vendors virtually 24-7. They can even purchase alcohol on Sunday after 11:00 a.m. But for decades they have been barred by law from purchasing a new or used automobile from a licensed car dealer.

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