Emerging Antitrust Issues: Exploring Non-Reportable Transactions in 2015 & Beyond
The U.S. Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ) increasingly are focusing upon enforcement of transactions that don’t require filing under the Hart-Scott-Rodino Antitrust Improvements Act (HSR), often referred to as non-reportable transactions.
Generally, only transactions valued greater than $76.3 million are reportable. However, almost twenty percent of merger investigations by the DOJ from 2009 to 2013 related to non-reportable transactions since they can affect competition and hence affect consumers. In the DOJ’s recent challenge to a non-report transaction, US v. Bazaarvoice, Inc., the DOJ demonstrated the agencies willingness to pursue merger cases under the Clayton Act, regardless of reportability. Indeed, the DOJ reached an agreement earlier this year with two tour bus companies to disgorge $7.5 million in profits garnered during the life of the companies’ joint venture.
Companies considering non-reportable transactions that may present competitive concerns should consider the pros and cons of voluntarily reporting with the relevant agencies, as well as other strategies to mitigate the risk of an unexpected investigation, and potentially litigation, down the line.
In this CLE webcast, The Knowledge Group has assembled a panel of key thought leaders to provide the audience with an in-depth analysis and discussion of Emerging Anti-trust Issues: Exploring Non-Reportable Transactions in 2015. Speakers will also review recent non-reportable transactions and offer best practices on avoiding common pitfalls and risks of anti-competitive activity.
Key issues that will be covered in this course are:
- Recent Antitrust Scrutiny of Non-Reportable Transactions
- Recent Challenges Specific to Non-Reportable Transaction Investigations and Implications for Parties and Enforcement Agencies
- Nature of Developments
- Risk Analysis and Mitigation
- Best Practices to Avoid Investigations into Non-Reportable Transactions
Megan Browdie, Attorney
- Enforcement statistics for non-reportable transactions
- Recent FTC or DOJ challenges to non-reportable transactions
- Coach USA Inc. / City Sights LLC (disgorgement)
- Bazaarvoice / Power Reviews
- Healthcare industry challenges [may cover all three or just one depending on how the slides come out]
- Phoebe Putney / Palmyra Park Hospital
- ProMedica / St. Luke’s
- Lab Corp / Westcliff
- Agency comments on non-reportable transactions enforcement
John R. Ingrassia, Special Counsel
Proskauer Rose LLP
- What are the rules for determining which transactions will be subject to HSR reporting?
- What are the thresholds, how are they applied, what exemptions are available, and how does transaction structure impact reportability?
- What are the substantive standards for evaluation of whether a transaction passes antitrust muster?
- What is the interplay between the statutory prohibitions under Clayton Act section 7 and the merger guidelines issued by the agencies?
- How are transactions with vertical components viewed differently from transactions that are purely horizontal in nature between direct competitors at the same level in the supply chain?
- What are the red flags that are most likely to result in an investigation of a transaction?
Robert A. Jaffe, Of Counsel
Kutak Rock LLP
- Why the transaction is not reportable should lead into and influence the substantive antitrust analysis.
- Dig deep and think twice; make sure your exemption is not an avoidance device.
- Market analysis, gathering information and reaching decisions; look for potential plaintiffs and complainers.
- Gun-jumping is still a problem; rules on keeping pre-closing management and operations separate apply to non-reportable transactions.
- When to consider restructuring to avoid antitrust scrutiny; a potential antirust problem doesn’t mean the transaction cannot be done.
Who Should Attend:
- Antitrust Lawyers
- Litigation Officers
- Litigation Lawyers
- Civil Litigators
- Chief Compliance Officers
- Corporate Executives
- In-house Counsel
- Private and Public Companies
- Other Related/Interested Professionals and Organizations
John Ingrassia is a special counsel at Proskauer, and advises clients on a wide range of antitrust matters in various industries, including chemicals, pharmaceutical, medical devices, telecommunications, financial services, health care, and others. His practice includes a significant focus on the analysis of Hart-Scott-Rodino pre-merger notification requirements, the coordination and submission of Hart-Scott-Rodino filings, and the analysis and resolution of antitrust issues related to mergers, acquisitions, and joint ventures. John is regularly invited to participate in Federal Trade Commission and bar association discussions regarding Hart-Scott-Rodino practice issues. John also advises clients regarding international antitrust issues arising in proposed acquisitions and joint ventures, including reportability under the EC Merger Regulation and numerous other foreign competition filing regimes, and liaising with local counsel to coordinate foreign pre-merger notifications and ensure the efficacy and consistency of the competition law theories advanced. John is a member of the Antitrust Law sections of the American Bar Association, New York Bar Association, and District of Columbia Bar Association, where he also served as former Chair of their Antitrust and Consumer Law Committee. John is a graduate of Pace University, and earned his J.D. at Hofstra University School of Law.
John Ingrassia is a special counsel at Proskauer, and advises clients on a wide range of antitrust matters in various …
Robert A. Jaffe, of counsel in Kutak Rock’s Washington D.C. office, concentrates his practice in complex commercial litigation and antitrust counseling, principally for banks, other financial institutions, major corporations, hospitals and other health care organizations. He has extensive experience in administrative proceedings and defense of government and agency investigations, as well as over 30 years of experience with leading firms in New York and Washington, D.C.
Mr. Jaffe’s financial institution cases include mortgage fraud, credit card portfolio, commercial lending, insurance, real estate lending and foreclosure, as well as numerous securitization cases for trustees, investors and insurers. He provides advice on antitrust and competition issues on joint ventures and mergers, including Hart-Scott-Rodino filings or exemptions, for health care organizations, financial institutions and other corporations and investors. Mr. Jaffe has been the lead counsel in jury and non-jury trials in state and federal courts, and on appeals in the D.C., Federal and Second and other federal Circuits. He has worked as part of defense counsel teams on multi-party antitrust and other class action cases. Mr. Jaffe recently headed a multi-lawyer team over five years in a major RMBS litigation, resulting in a significant, favorable settlement.
Mr. Jaffe received his J.D. with high honors from the University of North Carolina at Chapel Hill School of Law (1978), studied international law at the University of Vienna, and received his undergraduate degree from N.Y.U. He is admitted in the District of Columbia and New York, the U.S. Supreme Court, and other federal courts.
Robert A. Jaffe, of counsel in Kutak Rock’s Washington D.C. office, concentrates his practice in complex commercial litigation and antitrust …
Megan Browdie is an associate in Cooley's Antitrust & Competition practice group. She advises clients on antitrust issues, including with respect to mergers and acquisitions, compliance with the Hart-Scott-Rodino Act, licensing of intellectual property, and distribution. She has experience in matters before the Department of Justice, Federal Trade Commission, and state attorneys general, as well as in federal court. Megan has worked with clients in a number of industries, including automotive, consumer goods, computer hardware and software, financial services, oil and gas, pharmaceuticals and medical devices, publishing, and telecommunications.
Megan Browdie is an associate in Cooley's Antitrust & Competition practice group. She advises clients on antitrust issues, including with …
Print and review course materials
Method of Presentation:
NASBA Field of Study:
NY Category of CLE Credit:
Unlock All The Knowledge and Credit You Need
Leading Provider of Online Continuing Education
It's As Easy as 1, 2, 3
Get Your 1-Year All Access Pass For Only $199
About Proskauer Rose LLP
Proskauer is a global law firm recognized for its excellence both in practicing law and serving clients. Our roots go back to 1875, when we were founded in New York City. With 700+ lawyers in 13 offices and approximately 50 areas of practice, we have the capabilities, experience and creativity to guide our clients through their most important legal and business challenges. We are trusted advisors to many of the world’s top companies, financial institutions, investment funds, not-for-profit institutions, governmental entities and other organizations across industries and borders. We also represent individuals in transactions and other matters. In addition to New York, we have offices in Washington, D.C., Boston, Chicago, Los Angeles, Boca Raton, Newark and New Orleans, as well as in London, Paris, Hong Kong, Beijing and São Paulo.
About Kutak Rock LLP
Kutak Rock LLP <www.kutakrock.com> is a national law firm of more than 500 lawyers with offices from coast to coast. Our firm serves local, regional and national clients in a practice that spans a wide range of disciplines. We encourage our attorneys to take advantage of the national resources and broad range of expertise the firm offers in order to provide the best legal services possible to our clients.
Our firm's primary practice concentrations are business and corporate law, public finance, litigation and real estate law, with numerous areas of specialization. Kutak Rock attorneys work together in well-integrated, national practice groups to maintain and enhance their technical expertise and to reinforce and support one another in achieving client objectives.
Kutak Rock attorneys have represented hundreds of state and local governmental units, a substantial number of Fortune 500 corporations, every major investment banking firm in the United States, major European, Asian and domestic money-center banks, insurance companies, national real estate investors and developers, major national franchising enterprises and numerous other financial institutions and businesses.
We have earned a national reputation for finding creative solutions to complex legal issues and for providing excellent legal services in a practical, cost-conscious manner. We maintain that reputation by actively communicating with our clients at the initial stages of each engagement to gain a complete and clear understanding of our clients' desired objectives.
About Cooley LLP
Cooley’s attorneys solve legal issues for entrepreneurs, investors, financial institutions and established companies. Clients partner with Cooley on transformative deals, complex IP and regulatory matters, and bet-the-company litigation, often where innovation meets the law. Cooley has more than 850 lawyers across 12 offices in the United States, China and Europe. Cooley’s Antitrust & Competition team is recognized as one of the top-tier practices in the area of antitrust by Chambers USA: America’s Leading Business Lawyers and Global Competition Review. Providing a full range of counseling, litigation, agency representation, and arbitration services, we handle all aspects of antitrust and trade regulation matters for Fortune 500 corporations, as well as growing companies, in virtually every sector of the economy including telecommunications, software, computer hardware, ecommerce, social media, biotech, pharmaceuticals, medical devices, aerospace, defense, oilfield services, industrial manufacturing, consumer products, and financial services.