Legal Library: Cases and Proceedings

Service Corporation International (SCI), the nation’s largest provider of funeral and cemetery services,agreed to sell 53 funeral homes and 38 cemeteries to resolve FTC charges that its proposed $1.4 billion acquisition of Stewart Enterprises, Inc. (Stewart) is likely to substantially lessen competition in 59 communities throughout the United States. The FTC complaint alleges the deal as proposed would eliminate direct competition between the two firms. The FTC charges that the proposed deal would enable the merged firm unilaterally to raise prices charged to consumers in these local markets and would substantially increase the risk of collusion between SCI and the few remaining competitors in the affected local areas. The proposed order settling the FTC’s charges requires SCI and Stewart to sell the 53 funeral homes and 38 cemeteries to Commission-approved buyers within 180 days, and also requires SCI and Stewart to sell certain related assets and property needed to ensure that the buyers will be able to fully replicate the competition that would have been lost if the transaction were completed as proposed.

The FTC challenged Verisk Analytics, Inc.’s proposed $650 million acquisition of EagleView Technology Corporation, alleging that it would likely reduce competition and result in a virtual monopoly in the U.S. market for rooftop aerial measurement products used by the insurance industry to assess property claims. The FTC issued an administrative complaint and authorized staff to seek a temporary restraining order and preliminary injunction in federal court.  On 12/16/14, Verisk Analytics, Inc. announced that it would abandon its plans to acquire EagleView, and the Commission dismissed the administrative complaint.

Valeant Pharmaceuticals International, Inc. and Precision Dermatology, Inc. agreed to sell or relinquish rights to Precision’s branded single-agent topical tretinoins and generic Retin-A, common acne treatments, to settle FTC charges that Valeant’s proposed $475 million acquisition of Precision would likely be anticompetitive. According to the FTC complaint, Valeant’s proposed acquisition of Precision would likely reduce competition in the market for branded and generic single-agent topical tretinoins, and in a separate market for generic Retin-A. The proposed consent order requires Valeant to sell Precision’s assets related to Tretin-X, its branded single-agent topical tretinoin, to Actavis, Inc., and Precision’s assets related to generic Retin-A to Matawan Pharmaceuticals LLC, a subsidiary of Rouses Point Pharmaceuticals.

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.

In the matter of Polypore International/Daramic LLC, the Commission issued an administrative complaint challenging Polypore’s consummated acquisition of Microporous Products in the global market for battery separators, a key component in flooded lead-acid batteries. According to the Commission’s complaint, the acquisition, which occurred in February 2008, substantially lessened competition and led to higher prices in several North American product markets including 1) deep-cycle separators used in golf carts, 2) motive separators for batteries used primarily in forklifts, 3) automotive separators used in car batteries, and 4) uninterruptible power supply (UPS) separators used in batteries that provide backup power during power outages. Additionally, the complaint alleged that Polypore engaged in anticompetitive conduct by entering into a joint marketing agreement with a competitor, restricting the competitor’s entry into the polyethylene battery separator markets. The complaint also charged that Polypore sought to maintain monopoly power through anticompetitive means in several battery separator markets. On 3/8/2010, the ALJ announced an Initial Decision finding that Polypore International Inc.’s consummated acquisition – through its Daramic Acquisition Corporation subsidiary – of rival battery separator manufacturer Microporous L.P. was anticompetitive and violated federal law in four battery separator markets in North America. In an Order filed with the Initial Decision on 2/22/2010, Judge Chappell ordered Polypore to divest Microporous to an FTC-approved buyer within six months after the divestiture provisions of the Order become final. Judge Chappell also ruled that a 2001 joint marketing agreement between Polypore and a rival battery separator manufacturer illegally divided up the markets for particular types of battery separators in North America, and ordered Polypore to amend the agreement to terminate and declare null and void the covenant not to compete. Finally, the Judge dismissed a separate allegation that Polypore engaged in exclusionary conduct in specific battery separator markets. In December of 2010, the Commission voted to uphold in large part the March 2010 Initial Decision, finding that the acquisition reduced competition in three of the four relevant markets, and ordering divestiture. Polypore subsequently filed a petition for review of the Commission's Decision and Order in the US court of Appeals for the Eleventh Circuit. On 07/12/2012, the U.S. Court of Appeals upheld the FTC's Opinion and Order, and on 06/24/2013, the Supreme Court denied Polypore's petition for certioari. In December 2013, the FTC approved the sale of all stock and assets related to Microporous to Seven Mile Capital Partners.

Honeywell International Inc agreed to license patents critical to the manufacture of two-dimensional (2D) bar code scanners to settle FTC charges that it's acquisition of rival Intermed Inc would be anticompetitive.  Honeywell will license its and Intermec's patents for 2D scan engines to Datalogic IPTECH s.r.l for the next 12 years.

The FTC charged that GE’s proposed acquisition of Avio would substantially lessen competition in the sale of engines for the A320neo aircraft, which would result in higher prices, reduced quality, and engine delivery delays for A320neo customers. GE -- through CFM International, its joint venture with France’s Snecma S.A. -- and Pratt & Whitney are the only two firms that manufacture engines for Airbus’s A320neo aircraft.  Avio designs a critical component -- the accessory gearbox or AGB -- for Pratt & Whitney’s PW1100G engine.  Pratt & Whitney has no viable alternatives to Avio for development of the AGB for the PW1100G engine.  According to the FTC, GE's acquisition of Avio would give GE the ability and incentive to disrupt the design and certification of Avio’s AGB for the PW1100G engine used on A320neo aircraft.  The FTC order remedies the acquisition’s likely anticompetitive effects by removing GE’s ability and incentive to disrupt Avio’s AGB work during the design, certification, and initial production ramp-up phase

Houghton International, Inc., the leading North American provider of hot rolling oil used to process aluminum, agreed to sell some of the assets it acquired in 2008 through its purchase of D.A. Stuart GmbH, a transaction that included multiple product markets. The FTC’s investigation found that Houghton’s acquisition of D.A. Stuart GmbH combined the two largest suppliers of aluminum hot rolling oil (AHRO) in North America, giving the combined firm control of almost 75 percent of the North American market. The FTC’s complaint alleges that, through its purchase of Stuart, Houghton could unilaterally raise AHRO prices to U.S. consumers. The complaint also alleges that the acquisition could decrease innovation for this vital input into aluminum manufacturing. Under the order settling the FTC’s charges, Houghton will sell Stuart’s AHRO business to Quaker Chemical Corporation.

The FTC issued an administrative complaint  challenging electronics component manufacturer Integrated Device Technology, Inc.’s proposed $330 million acquisition of PLX Technology, Inc., a deal that allegedly would give the combined firm a near-monopoly in the market for a type of integrated computer circuits called PCIe switches, which perform critical connectivity functions in computers and other electronic devices widely used by American consumers and businesses. The Commission also authorized the staff to seek a preliminary injunction in federal district court or other relief necessary to stop the deal pending a full administrative trial, but theparties abandoned the transaction and the Commission later dismissed the complaint.