Competition Matters

Over the past few years, the Bureau has faced a surprising number of failing firm claims by merging parties. Even when the economy was booming, we heard many iterations of the same argument: The acquired firm is failing. The acquiring firm is failing. Both firms are failing (which presumably would justify the merger on the basis that if you tie two sinking rocks together, they’re more likely to float). The entire industry is failing.

I want to thank Mike Moiseyev for his dedication and commitment to the Bureau of Competition. Mike has led the Mergers I Division for the past 16-and-a-half years, becoming Assistant Director in 2003. Mike joined the Bureau of Competition in 1989, following law school. He has managed some of the most significant cases in the Bureau during his career.

As we navigate uncharted waters in our work and home lives in response to the COVID-19 pandemic, a few changes have happened quickly.  We claimed “home office” space to take on the challenges of working remotely.  Bureau of Competition staff shifted from in-person meetings to conference calls, made from unlikely venues (such as couches) without all the usual professional trappings (sweatpants optional, children entirely possible).

Like many other agencies, organizations, and employers across the country, we in the Bureau of Competition are adjusting to the realities of working during the COVID-19 coronavirus crisis. As part of that adjustment, we are taking a variety of measures to respond to these new and challenging circumstances. Our two main priorities will continue to be: first, the health and well-being of our personnel, their families, and parties and organizations who appear before us; and, second, the continuity of our mission to protect competition and consumers.

I am pleased to announce several management changes in the Bureau of Competition. While Michael Moiseyev is on detail, Dan Zach is serving as Acting Assistant Director for the Mergers I Division. Dan has served as Deputy Assistant Director of Mergers I since 2012, and he recently was lead counsel in the Commission’s successful challenge to the consummated merger between Otto Bock and Freedom Innovations.

The Commission and Department of Justice’s recent case against Canon Inc. and Toshiba Corporation for violating the Hart-Scott-Rodino Antitrust Improvements Act makes an important point: restructuring a deal to avoid or delay an HSR filing may subject the merging companies to substantial penalties if the restructured transaction still results in an acquisition by the A side.

For the good of the antitrust bar and our entire profession, the BC Front Office encourages parties to give associates, counsel, and newer partners more opportunities to present to the Bureau and the Commission in party meetings. In return, we promise reasonable expectations based on attorneys’ level of experience.

In The Wizard of Oz, Dorothy was told to ignore the man behind the curtain. Some may argue that the same guidance applies to ancillary parts of a merger or joint venture agreement. These can include non-solicitation and non-compete provisions. Even when such provisions are ancillary to an otherwise legitimate business transaction, we will still make a determination that the restraints do not independently violate the antitrust laws by being overly broad.

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