Legal Library: Cases and Proceedings

The Commission reached settlement agreement with Tops Markets LLC that protects consumers from the potential anticompetitive effects of Tops’ acquisition of the bankrupt Penn Traffic Company supermarket chain. To settle FTC charges that the acquisition was anticompetitive in several areas of New York and Pennsylvania, Tops agreed to sell seven Penn Traffic supermarkets to FTC-approved buyers in five grocery markets: Bath, Cortland, Ithaca, and Lockport, New York, as well as Sayre, Pennsylvania.

On 12/16/2011, Brian L. Roberts, the Chief Executive Officer of Comcast Corporation, agreed to pay a $500,000 penalty to settle Federal Trade Commission charges that he violated the Hart-Scott-Rodino Antitrust Improvement Act (HSR Act) in connection with his acquisitions of Comcast stock between 2007 and 2009. The FTC alleged that Roberts failed to file required notices before acquiring Comcast shares. The amount of the fine was limited by a number of factors, including that the violation was inadvertent and technical; that it was apparently due to faulty advice from outside counsel; that Roberts did not gain financially from the violation; and that he reported the violation promptly once it was discovered.

BASF has settled Commission charges that its proposed $5.1 billion acquisition of rival chemical manufacturer Ciba Holding Inc. would be anticompetitive and violate federal law by reducing competition in the worldwide markets for two high performance pigments. Under the terms of a consent order allowing the transaction to proceed, the FTC requires BASF to sell all assets, including the intellectual property related to the two pigments, bismuth vanadate and indanthrone blue, to a Commission-approved buyer within six months.

A final consent order allows the merger of Phillips Petroleum and Conoco Inc. but requires certain divestitures and other relief to maintain competition in the gasoline refining market in specific areas of the United States. Among the assets to be divested are refineries, propane terminals, and natural gas gathering facilities. The FTC approved an application to reopen and modify its final order to change the license agreement that ConocoPhillips has with Holly Corporation, an independent oil refining company. The changes approved by the Commission allow ConocoPhillips and Holly to make the licensing of the "Phillips" and "Phillips 66" brands non-exclusive in two states for the last two years of the FTC-required agreement between them.

The Commission required dialysis services company DaVita, Inc. to sell 29 outpatient dialysis clinics around the United States, under a settlement that resolves FTC charges that DaVita’s proposed $689 million acquisition of rival CDSI I Holding Company, Inc., also known as DSI, would be anticompetitive. The settlement preserves competition in 22 geographic markets where the FTC alleges that consumers would be harmed by DaVita’s acquisition of DSI. The settlement requires DaVita to sell the clinics to Dialysis Newco, Inc., a corporation formed by venture capital firms Frazier Healthcare and New Enterprise Associates.

The Commission required Irving Oil Terminals Inc. and Irving Oil Limited to relinquish the rights to terminal and pipeline assets in Maine that Irving acquired from ExxonMobil, to maintain competition in gasoline and distillates terminaling services in the South Portland and Bangor/Penobscot Bay areas. The proposed settlement resolves the FTC’s charges that the acquisition is anticompetitive and could result in higher gasoline and diesel prices for consumers.

Under the terms of the settlement, Simon Property Group, Inc. is required to divest property and modify tenant leases to preserve outlet center competition in parts of southwest Ohio, Chicago, Illinois, and Orlando, Florida, in the wake of Simon’s purchase of Prime Outlets Acquisition Company, LLC. In addition, Simon has agreed to remove radius restrictions for tenants with stores in its outlet malls serving the Chicago and Orlando markets.

The Commission required Hikma Pharmaceuticals PLC (Hikma) to divest two generic injectable pharmaceuticals – phenytoin and promethazine – as part of a settlement allowing it to acquire certain assets from Baxter Healthcare Corporation, Inc. (Baxter). Hikma proposes to acquire Baxter’s entire generic injectable pharmaceutical business for $111.5 million, including Baxter’s Cherry Hill, New Jersey, manufacturing facility and a warehouse and distribution center in Memphis, Tennessee. Phenytoin is an anti-convulsant drug used to control and prevent seizures during or after surgery and Promethazine is used to prevent some types of allergies or allergic reactions, to prevent or control motion sickness, nausea, vomiting, and dizziness, and to help patients go to sleep and control their pain or anxiety before or after surgery.