Statement of Commissioner Mozelle W. Thompson
In the Matter of Bayer/Aventis AG, File No. 011 0199
Today, I have joined in the Commission's vote to accept for public comment a proposed consent agreement and order resolving competitive issues stemming from Bayer AG's proposed acquisition of Aventis CropScience Holding S.A. Although I believe that in this matter the proposed consent agreement and order adequately address the Commission's concerns, I write separately to underscore that consent order divestiture provisions for which a buyer has not yet been identified will continue to be closely scrutinized in order to ensure that the asset package is sufficient and that a qualified buyer will likely be found.
The value of having "up front" buyers is explained in the Commission's 1999 Divestiture Study,(1) which reviews Commission divestiture orders issued between 1990 and 1994. This value has only increased as we review more complex transactions in interconnected markets. In cases where there are questions about asset sufficiency or buyer qualifications, or where the Commission determines that there are other risks to the proposed divestiture, I believe that presentation of an up front buyer will be required.(2)
1. A Study of the Commission's Divestiture Process, Staff of the Bureau of Competition (1999), available at http://www.ftc.gov/os/1999/9908/divestiture.pdf. "The 'up front' divestiture not only reduces the opportunity for interim competitive harm by expediting the divestiture process, but it assures at the outset that there will be an acceptable buyer for the to-be-divested assets." Id. at 39.
2. Indeed, it is the Commission's prerogative to require an up front buyer in any merger warranting divestiture(s), and it will do so when it has less than complete confidence that all risks to the efficacy of the proposed relief have been minimized. For more information regarding "up front" buyers, please see "Frequently Asked Questions About Merger Consent Order Provisions," available at http://www.ftc.gov/bc/mergerfaq.htm.