Legal Library: Cases and Proceedings

Media research company Nielsen Holdings N.V. settled charges that its acquisition of Arbitron Inc. may substantially lessen competition for national syndicated cross-platform audience measurement services.  Nielsen and Arbitron are the best-positioned firms to develop (or partner with others to develop) a national syndicated cross-platform audience measurement service because of their existing audience measurement panels and proven audience measurement technology assets. To settle the charges, the Commission required the divestiture of assets related to Arbitron’s cross-platform audience measurement business, including data from its representative panel, to a Commission-approved buyer.

Pharmaceutical companies Endo Health Sciences Inc. (Endo) and Boca Life Science Holdings, LLC and Boca Pharmacal, LLC (Boca) agreed to a settlement resolving FTC charges that Endo’s acquisition of Boca would be anticompetitive. Under the settlement, the companies will relinquish their rights to market and distribute four generic multivitamin fluoride drops for children, and will sell three other generic drugs in development.The proposed settlement preserves competition in the pharmaceutical markets for four prescription generic multivitamin drop products given to children in the United States who do not have access to fluoridated water.  In addition, the FTC’s settlement preserves future competition for three generic drugs where the proposed acquisition would eliminate one likely future entrant from a very limited pool of future entrants.

Oil refiner Tesoro Corporation and one of its subsidiaries agreed to sell their light petroleum products terminal in Boise, Idaho to settle charges that their $335 million acquisition of pipeline and terminal assets from Chevron Corporation would be anticompetitive. Without the divestitures required by the FTC, the deal would have given Tesoro ownership of two of the three full service light petroleum terminals in Boise, significantly reducing competition for local terminal services. The proposed order requires Tesoro to sell the terminal it currently owns in Boise to an FTC-approved buyer within six months of when the order becomes final.

The FTC challenged Ardagh Group, S.A.’s proposed $1.7 billion acquisition of Saint-Gobain Containers, Inc., alleging that it will reduce competition and result in the two firms – the merged firm and its only remaining significant competitor, Owens-Illinois – controlling in excess of 75 percent of the U.S. markets for glass containers for beer and spirits customers, resulting in higher prices for those customers. The FTC issued an administrative complaint against the two companies, alleging that the acquisition would violate U.S. antitrust law. The proposed acquisition would combine the second-largest manufacturer of glass containers (Saint-Gobain) and the third-largest (Ardagh).The complaint alleges that glass container competitors possess a wealth of information about each other and the glass container industry, and that reducing the number of major competitors from three to two will make it substantially easier for the remaining two competitors to coordinate with one another to achieve supracompetitive prices or other anticompetitive outcomes. The Commission also filed a motion for a preliminary injunction in federal court to preserve the status quo pending the outcome of the administrative trial on the merits.  On 11/3/13, the parties stipulated to a hold separate order in the federal court proceeding.   On 11/8/13 the Commission stayed the part 3 litigation pending settlement discussions. On 4/10/14, Ardagh Group SA agreed to sell six of its nine glass container manufacturing plants in the United States to settle the FTC's charges. The FTC’s settlement order requires Ardagh to sell six of the manufacturing plants and related assets it acquired through its 2012 acquisition of Anchor Glass Container Corporation, along with Anchor’s former corporate headquarters in Tampa, Fla.

The FTC required Kinder Morgan, Inc., one of the largest U.S. transporters of natural gas and other energy products, to sell three natural gas pipelines and other related assets in the Rocky Mountain region as part of a settlement resolving charges that Kinder Morgan's $38 billion acquisition of El Paso Corporation would be anticompetitive. According to the FTC's complaint, Kinder Morgan's proposed acquisition of El Paso would harm competition in the markets for pipeline transportation and processing of natural gas in the Rocky Mountain gas production areas in and around Wyoming, Colorado, Nebraska, and Utah.

The FTC charged that Solera's 2012 acquisition of Actual Systems likely would substantially lessen competition in the market for yard management systems, which was already highly concentrated.  To address the FTC's competitive concerns, Solera must sell assets related to Actual Systems' YMS to ASA Holdings.