Legal Library: Cases and Proceedings

The Federal Trade Commission filed an administrative complaint, and authorized a suit in federal court, to block the proposed $350 million acquisition by Memphis-based Methodist Le Bonheur Healthcare of two Memphis-area hospitals, known as Saint Francis, owned by Dallas-based healthcare system Tenet Healthcare Corporation. The complaint alleges that the proposed acquisition would substantially lessen competition in the Memphis area for a broad range of inpatient medical and surgical diagnostic and treatment services that require an overnight hospital stay, known as inpatient general acute care services, sold to commercial insurers and their insured members.  According to the complaint, if the proposed acquisition is consummated, healthcare costs will rise, and the incentive to expand service offerings, invest in technology, improve access to care, and focus on quality of health care provided in the Memphis area will diminish. On Dec. 23, 2020, the parties announced that they were abandoning the acquisition.

The Federal Trade Commission required medical device companies Stryker Corp. and Wright Medical Group N.V. to divest all assets related to Stryker’s total ankle replacements and finger joint implant products to remedy concerns, as alleged in the complaint, that Stryker’s proposed $4 billion acquisition of Wright would harm competition in these two markets. Under the consent order, Stryker and Wright must divest all assets associated with Stryker’s total ankle replacements and finger joint implants to DJO Global, allowing it to become an independent, viable, and effective competitor in these markets.  After a period for public comment, the Commission issued its final order on December 11, 2020.

The FTC issued an administrative complaint challenging the merger of two prosthetics manufacturers that are top sellers of prosthetic knees equipped with microprocessors. According to the FTC’s complaint, Otto Bock’s consummated acquisition of FIH Group Holdings (owner of Freedom Innovations) harmed competition in the U.S. market for microprocessor prosthetic knees by eliminating head-to-head competition between the two companies, removing a significant and disruptive competitor, and entrenching Otto Bock’s position as the dominant supplier. Microprocessor knees, which use microprocessors to adjust the stiffness and positioning of the joint in response to variations in walking rhythm and ground conditions, provide a stable platform for amputees. Compared to other products, microprocessor prosthetic knees reduce the risk of falling, cause less pain, and promote the health and function of the sound limb. In addition to issuing an administrative complaint, the Commission authorized agency staff to seek a temporary restraining order, preliminary injunction, and ancillary relief in federal court, should doing so be necessary to ensure the Freedom Innovations business remains viable and to preserve the Commission ability to order effective relief. On Dec. 1, 2020, the Commission announced approval for the divestiture of the Freedom assets.

CoreLogic, Inc. agreed to settle FTC charges that its proposed $661 million acquisition of DataQuick Information Systems, Inc. from TPG VI Ontario 1 AIV L.P. would likely substantially lessen competition in the market for national assessor and recorder bulk data. The FTC’s proposed settlement order requires CoreLogic to license to Renwood RealtyTrac national assessor and recorder bulk data as well as several ancillary data sets that DataQuick provides to its customers. The order allows RealtyTrac to offer customers the data and services that DataQuick now offers and to become an effective competitor in the market.

The Federal Trade Commission has filed an administrative complaint challenging a proposed joint venture between Peabody Energy Corporation and Arch Coal. The transaction would combine their coal mining operations in the Southern Powder River Basin, located in northeastern Wyoming. The complaint alleges that the transaction will eliminate competition between Peabody and Arch Coal, the two major competitors in the market for thermal coal in the Southern Powder River Basin, and the two largest coal-mining companies in the United States. On Sept. 29, 2020, the U.S. District Court for the Eastern District of Missouri granted the FTC’s request for a preliminary injunction, and the parties abandoned their transaction.

Arko Holdings Ltd. and Empire Petroleum Partners, LLC have agreed to divest retail fuel assets in local gasoline and diesel fuel markets across four states to settle Federal Trade Commission charges that Arko’s proposed acquisition of Empire would violate federal antitrust law. The Commission announced final approval of the consent order in October 2020.

In July 2020, the FTC required global suppliers of animal products, Elanco Animal Health, Inc. and Bayer Animal Health GmbH, to divest three animal health products to settle charges that Elanco’s proposed $7.6 billion acquisition of Bayer would likely be anticompetitive in those markets. On Sept. 11, 2020, the Commission announced the final consent agreement in this matter.

Pharmaceutical companies AbbVie Inc. and Allergan plc have agreed to divest assests to settle Federal Trade Commission charges that AbbVie's proposed $63 billion acquisition of Allergan would violate federal antitrust law. On Sept. 4, 2020, the Commission announced the final consent agreement in this matter.

Casino operator Eldorado Resorts, Inc. has agreed to divest assets to settle charges that its $17.3 billion acquisition of Caesars Entertainment Corporation likely would be anticompetitive in the South Lake Tahoe area of Nevada, the Bossier City-Shreveport area of Louisiana, and the Kansas City area of Kansas and Missouri. According to the complaint, the proposed acquisition would harm competition for casino services in these three local markets, increasing the likelihood that Eldorado would unilaterally exercise market power, which in turn would lead to higher prices and reduced quality. In August 2020, the Federal Trade Commission approved a final order resolving those charges.

Tri Star Energy, LLC, Hollingsworth Oil Company, Inc., C & H Properties, and Ronald L. Hollingsworth, which operate fuel outlets and convenience stores, agreed to settle FTC charges that Tri Star’s acquisition of retail outlets and related interests of Hollingsworth would violate antitrust law. The complaint alleges that the proposed acquisition would harm competition for both retail gasoline sales and retail diesel fuel sales in the two local markets of Whites Creek, Tennessee and Greenbrier, Tennessee. Under the proposed consent agreement, Tri Star would be required to divest to Cox Oil Company, Inc. retail fuel assets in Whites Creek and Greenbrier within 10 days after Tri Star completes the acquisition. On August 14, 2020, the Commission announced it had approved the final consent order in this matter.

Announced in June 2019 as part of a crackdown on illegal robocalls against operations around the country responsible for more than one billion calls, the FTC’s complaint against six corporate and three individual defendants jointly doing business as Second Choice Horizon and CSG Solutions, alleges Raymond Gonzalez, Carlos S. Guerrero, and Joshua Hernandez ran a maze of interrelated operations that used illegal robocalls to contact financially distressed consumers with offers of bogus credit card interest rate reduction services. The FTC contends many of the consumers targeted were seniors. In July 2020, the FTC announced the defendants had settled the Commission’s complaint, and are banned from telemarketing and selling debt relief services.

The operators of a scheme that targeted new businesses across the country with bogus threats of government fines will pay $1.2 million and be banned from sending unsolicited direct mail under a settlement with the Federal Trade Commission and the State of Florida.

Retail fuel station and convenience store operator Alimentation Couche-Tard Inc. and its affiliate CrossAmerica Partners LP agreed to divest 10 fuel stations in Minnesota and Wisconsin to settle Federal Trade Commission charges that ACT’s proposed acquisition of Holiday Companies would violate federal antitrust law. The FTC later alleged that they violated a 2018 order requiring divestitures of 10 retail fuel stations in Minnesota and Wisconsin to Commission-approved buyers no later than June 15, 2018. They agreed to pay a $3.5 million civil penalty to the FTC to settle the allegations.

Össur Hf and College Park Industries, Inc., both makers of prosthetic limbs, have agreed to divest College Park’s myoelectric elbow business to settle Federal Trade Commission charges that Össur’s proposed acquisition of College Park would violate federal antitrust law.

The Federal Trade Commission authorized an action to block Evonik Industries AG’s proposed $625 million acquisition of PeroxyChem Holding Company, alleging the merger of the chemical companies would substantially reduce competition in the Pacific Northwest and the Southern and Central United States for the production and sale of hydrogen peroxide, a commodity chemical used for oxidation, disinfection, and bleaching.

Polyurethane foam producers FXI Holdings, Inc. and Innocor, Inc. have agreed to divest polyurethane foam pouring plants in three regional markets to Future Foam, Inc., to settle Federal Trade Commission charges that FXI’s proposed $850 million acquisition of Innocor would violate federal antitrust law. The FTC alleges that the combination of FXI and Innocor would substantially lessen competition for low-density conventional polyurethane foam used in home furnishings in three regional markets: the Pacific Northwest (Oregon and Washington); the Midwest states of Indiana, Michigan, and Ohio; and Mississippi. To remedy the proposed transaction’s anticompetitive effects, the proposed order requires the companies to divest FXI’s foam-pouring plant in Kent, Washington and Innocor’s foam-pouring plants in Elkhart, Indiana and Tupelo, Mississippi to Future Foam no later than 10 days after the close of the acquisition. On April 20, 2020, the Commission voted 5-0 to approve the final order settling the charges.