December Antitrust Bulletin

December 6, 2016

FTC, DOJ Seek Comment on Proposed Changes to International Antitrust Guidelines

On Nov. 1, 2016, the Federal Trade Commission (FTC) issued a press release announcing that the FTC and the Department of Justice’s (DOJ’s) Antitrust Division are seeking public comment on proposed Antitrust Guidelines for International Enforcement and Cooperation, to update the guidelines that were issued in 1995. The guidelines provide information to businesses concerning the agencies’ antitrust enforcement policy on international activities as well as their related investigative tools and cooperation with foreign authorities.

The FTC stated that the proposed guidelines reflect the growing importance of antitrust enforcement in a globalized economy and the agencies’ commitment to cooperating with foreign authorities on both policy and investigative matters. The proposed revisions describe the current practices and methods of analysis the agencies employ when determining whether to initiate and how to conduct investigations of conduct that has an international dimension. 

DOJ Sues to Block EnergySolutions’ $367M Acquisition of Waste Control Specialists

On Nov. 16, 2016, the DOJ filed a civil antitrust complaint in the U.S. District Court for the District of Delaware, seeking to block EnergySolutions’ proposed $367 million acquisition of Waste Control Specialists. This transaction would combine the two most significant competitors for the disposal of low-level radioactive waste (LLRW) available to commercial customers in 36 states, the District of Columbia, and Puerto Rico.

The DOJ stated that Waste Control Specialists has provided EnergySolutions the only real competition it has faced since opening its facility in 2012, leading to better prices and innovative services in LLRW disposal industry. LLRW is the radioactive byproduct of nuclear power generation, scientific research and certain medical treatments, and may be disposed of only in a facility licensed by the Nuclear Regulatory Commission (NRC) or a state acting under an agreement with NRC. 

New Requirements Concerning Hart-Scott-Rodino Items 4(c) and 4(d)

As of Nov. 28, 2016, the Premerger Notification Office (PNO) staff of the Bureau of Competition announced that, when submitting a Hart-Scott-Rodino (HSR) premerger notification filing to the FTC and DOJ, a filing party may no longer exclude a document responsive to Items 4(c) or 4(d) of the HSR form based on a determination that the document’s evaluation or analysis is limited to geographies or operations outside the United States. Item 4(c) of the HSR form requires filers to submit documents used to evaluate or analyze the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth, or expansion into product or geographic markets. Item 4(d) of the HSR form requires filers to submit certain documents that relate to the acquisition, including memoranda, documents prepared by third parties, and documents evaluating or analyzing synergies.

For years, the PNO’s position was that, if a document is otherwise responsive to Item 4(c) or 4(d) but discusses only foreign markets, it does not have to be submitted with the filing. Given the increasingly global marketplace, PNO now has determined that excluding such documents can impair the agencies’ initial competitive analysis and therefore has revised its guidance to include those documents.

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