Merger control in the United States: overview

A Q&A guide to merger control in the United States.

The Q&A gives a high level overview of merger control, regulatory framework and regulatory authorities, relevant triggering events and thresholds in the United States. It also covers notification requirements, procedures and timetables, publicity and confidentiality, third party rights, substantive test, remedies, penalties, appeals, joint ventures and proposals for reform.

For information on restraints of trade, monopolies and abuses of market power in the United States, visit Restraints of trade and dominance in the United States: overview.

This Q&A is part of the multi-jurisdictional guide to competition and cartel leniency. For a full list of jurisdictional Competition Q&As visit www.practicallaw.com/competition-mjg.

For a full list of jurisdictional Cartel Leniency Q&As, which provide a succinct overview of leniency and immunity, the applicable procedure and the regulatory authorities in multiple jurisdictions, visit www.practicallaw.com/leniency-mjg.

Contents

Regulatory framework

1. What (if any) merger control rules apply to mergers and acquisitions in your jurisdiction? What is the regulatory authority?

Regulatory framework

Mergers are governed by the following acts:

  • Clayton Act.

  • Sherman Act (sections 1 and 2).

  • Federal Trade Commission Act (FTC Act) (section 5).

The principal statutory prohibition relates to transactions where "the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly" and is contained in the following sections:

  • Section 1 of the Sherman Act in the context of mergers prohibits combinations "in restraint of trade".

  • Section 2 of the Sherman Act, which prohibits monopolisation or attempted monopolisation and agreements to monopolise.

  • Section 5 of the FTC Act, which relates more generally to unfair or deceptive acts or practices and unfair methods of competition.

Pre-merger notification is governed by section 7A of the Clayton Act (Hart-Scott-Rodino Act (HSR Act)).

Regulatory authority

Merger review at the federal level is conducted by the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ). Several subject area specialised agencies also address competition issues as part of their own review (that is, the Federal Communications Commission, state level Public Service Commissions, and others). Competition review is also often conducted at the state level by state attorneys general, who focus on more local impacts.

 

Triggering events/thresholds

2. What are the relevant jurisdictional triggering events/thresholds?

Triggering events

All types of transactions are potentially subject to merger review. This can include both stock and assets acquisitions, mergers, joint ventures, minority investments and incremental investments.

Thresholds

Each year, the FTC adjusts the dollar thresholds that trigger the obligation to make HSR Act filings based on changes in the gross national product. There are two types of thresholds:

  • Size-of-transaction.

  • Size-of person.

Size-of-transaction threshold. Effective 24 February 2014, the basic notification threshold is US$75.9 million. The threshold is adjusted annually based in changes in the US gross national product. Unless otherwise exempt under one of the many transaction type and asset class exemptions, an entity that directly or indirectly acquires assets or voting securities (or interests in an unincorporated entity) in excess of the size-of-transaction threshold may be required to file notification under the HSR Act and to observe the applicable waiting period before consummating the transaction.

Size-of person threshold. Under the current thresholds, transactions valued at US$303.4 million or less will be subject to the HSR Act if the parties also meet the size-of-person thresholds. The size-of-person is generally met where a person with annual net sales or total assets of US$151.7 million acquires a person with annual net sales or total assets of US$15.2 million, or vice-versa. Transactions valued at more than US$303.4 million or more are subject to the HSR Act without reference to the size of the person, unless otherwise exempt.

It must also observe the applicable waiting period before completing the transaction (see Question 4). Subsequent transactions involving the acquisition of additional interests in the same issuer typically are exempt from further notification unless a subsequent notification threshold is exceeded.

Size-of-person threshold. Under the revised thresholds:

  • The size-of-person is generally met where a person with annual net sales or total assets of US$151.7 million acquires a person with annual net sales or total assets of US$15.2 million, or vice-versa.

  • Transactions valued at US$303.4 million or less are subject to the HSR Act if the parties also meet the size-of-person thresholds.

  • Transactions valued at more than US$303.4 million are subject to the HSR Act without reference to the size of the person, unless otherwise exempt.

 

Notification

3. What are the notification requirements for mergers?

Mandatory or voluntary

Where the applicable thresholds are met and the transaction is not otherwise exempt, notification is mandatory. Voluntary notifications are not accepted by the agencies (FTC or the Antitrust Division of the DOJ). However, the agencies may be willing to engage in substantive discussions relating to non-reportable transactions in appropriate circumstances, such as a smaller transaction that does not meet the applicable reporting thresholds but results nevertheless in a high market concentration in a small or local market.

Timing

Notification must be made pre-closing. The HSR Act requires that parties observe a waiting period after filing notification and before closing. The typical waiting period is 30 days. However, shorter 15-day waiting periods are available for certain tender offer and bankruptcy transactions. Parties can file as soon as they have a signed agreement in the form of a definitive agreement or non-binding letter of intent.

Formal/informal guidance

There is typically no consultation with the agency in advance of filing. However, this can occur either where:

  • There is ambiguity in the reporting question.

  • The parties want to engage the agency substantively as early as possible.

Typically, the agency engages with parties in these circumstances.

Responsibility for notification

Each party to the transaction must prepare and submit its own notification.

Relevant authority

Notification is made to the FTC and the Antitrust Division of the DOJ.

Form of notification

The FTC prescribes the form of notification and revises the form from time to time. The agency publishes the required form on their website (see www.ftc.gov/enforcement/premerger-notification-program/form-and-instructions).

Filing fee

The buyer must pay the filing fee, which ranges from US$45,000 to US$280,000 depending on the size of the transaction. Under the thresholds in effect as of 24 February 2014, the prescribed fees are as follows:

  • Greater than US$75.9 million but less than US$151.7 million: US$45,000.

  • US$151.7 million or greater but less than US$758.6 million: US$125,000.

  • US$758.6 million or greater: US$280,000.

Obligation to suspend

The transaction cannot be implemented before the HSR Act waiting period expires or terminates early. The agency interprets implementation broadly. It has brought enforcement actions for "gun-jumping" (that is, implementation before approval) violations that prematurely transfer control or beneficial ownership of the target's business activities to the buyer, even where the transaction was not formally closed.

 

Procedure and timetable

4. What are the applicable procedures and timetable?

If the HSR filing thresholds are met (see Question 2) the parties must observe the applicable waiting period before completing the transaction.

The typical waiting period is 30 days and begins when both parties file. However, there are variations. There are shortened 15-day waiting periods for certain bankruptcy and tender offer transactions. In some cases a waiting period can be started with just the buyer's filing. This is most typically the case with open market purchases of a publicly traded security. However, it can occur in other types of transactions where there is no agreement with the target. The agency has the following options during the initial waiting period:

  • Take no action and allow the waiting period to expire.

  • Grant early termination if requested by one of the parties and if the agency does not intend to investigate the transaction further.

  • Open a formal or informal investigation of the transaction.

An informal investigation usually takes the form of a voluntary request for information while the waiting period continues to run. The aim is to have the investigation completed before the end of the waiting period. In cases where additional time is required, but a full-blown phase II or Second Request investigation is not warranted, the parties can withdraw and resubmit the HSR Act filing. This effectively restarts the initial waiting period and gives the agency more time to complete its informal investigation.

The pull and refile practice, available informally for many years, was codified at 16 CFR 803.12 in 2013. Under the rule, parties can withdraw their premerger notification filing by notifying the FTC and the Antitrust Division in writing. If the parties wish to pursue the acquisition, new notifications and a new filing fee are required unless the filing occurs within two business days of the withdrawal. A new waiting period also must be observed before completing the acquisition. For tender offers, the new rule deems that a HSR Act filing is automatically withdrawn if either:

  • A Schedule TO-A is filed with the Securities Exchange Commission (SEC) announcing the expiration or termination of a tender offer.

  • There is another public filing with the SEC, such as a Form 8-K, announcing the deal's termination.

The automatic withdrawal provisions of the rule require parties to notify the FTC and the Antitrust Division of the SEC of the filing that triggered the automatic withdrawal.

A formal investigation involves issuing a Second Request. Issuing a Second Request at the end of the initial waiting period suspends the waiting period until 30 days (ten for certain bankruptcy and tender offer transactions) following substantial compliance with the Second Request, which typically takes three to six months.

The reviewing agency must close its investigation after the initial waiting period or issue a Second Request for additional information and documentary materials. Therefore, in transactions where the parties are working with an agency during the waiting period to satisfy substantive concerns, the approaching end of the initial HSR waiting period can force the issuance of a Second Request for information if the agency is not yet prepared to close the investigation. To potentially avoid the need for a Second Request investigation, the Agencies have informally permitted the parties to withdraw (pull) the notification and refile within two business days. Upon refiling, a new HSR waiting period begins allowing the investigating agency additional time to analyse the transaction. The practice, which had been in use for decades, was formalised under a new rule in 2013.

After issuance of a Second Request and the parties' compliance with the document and information requests, which can typically take four to six months, the agency can do any of the following:

  • End the investigation.

  • Enter into a settlement with the parties setting out specified remedies.

  • Block the transaction.

For an overview of the notification process, see flowchart, Merger notification flowchart: United States (www.practicallaw.com/5-504-6458).

 

Publicity and confidentiality

5. How much information is made publicly available concerning merger inquiries? Is any information made automatically confidential and is confidentiality available on request?

Publicity

By statute HSR Act, filings are confidential. However, early termination grants are published. Strategically, this means that where confidentiality is important parties typically will not request early termination. They opt instead to observe the full waiting period. Filings can be made on either a:

  • Definitive agreement.

  • Non-binding letter of intent.

Both are done with fairly equal frequency. Many factors are considered in deciding when to file and on what type of document. Filing on a non-binding letter of intent has the benefit of starting the waiting period while the definitive documents are still being negotiated. However, without a firm deal in place parties do not generally want to spend resources and pay filing fees too early. Filing before a firm deal is announced also presents the risk that news of the transaction may leak prematurely. This can occur where the agency begins to investigate the transaction and contacts customers or competitors in the process. Although the agencies must keep the transaction confidential, parties who receive these calls can often guess who the likely buyer and seller are.

Automatic confidentiality

Where early termination of the waiting period is not granted, no information is or may be made public. This information includes the parties' names and the fact that filings were made. However, if the transaction is challenged there is a public court record of the matter and of the court filings made in the case.

Confidentiality on request

In transactions that are investigated and litigated in court, parties can request that certain court submissions are edited and combined in relation to confidential information.

 

Rights of third parties

6. What rights (if any) do third parties have to make representations, access documents or be heard during the course of an investigation?

Representations

The agencies will often solicit third parties' views as a normal part of the investigation. These can include customers, competitors and others.

Document access

Third parties are not given access to documents or information developed in the investigation unless the parties give consent or there are special circumstances, such as court proceedings where evidence compiled in the course of the investigation may be placed into the public record.

Be heard

Where the agency does not affirmatively request third party representations, views or input, parties can come forward on their own accord to give those views to the agency. The agencies are typically very responsive to these requests and allow the party to be heard. The weight the agency gives third-party views depends on several factors, including who they are. Customer views, for example, are typically given more weight than competitor views.

 

Substantive test

7. What is the substantive test?

In addition to the merger governing acts (see Question 1, Regulatory framework) the following apply:

  • Section 7 of the Clayton Act, which prohibits mergers if "in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly".

  • Section 1 of the Sherman Act, which prohibits combinations "in restraint of trade".

  • Section 2 of the Sherman Act, which prohibits monopolisation or attempted monopolisation and agreements to monopolise.

  • Section 5 of the FTC Act, which relates more generally to unfair or deceptive acts or practices and unfair methods of competition.

The agencies' objective is to identify and challenge competitively harmful mergers while avoiding unnecessary interference with mergers that are competitively beneficial or competitively neutral. Agency merger enforcement is expected to stop competitive problems before they occur. Therefore, certainty about anti-competitive effect is not required to challenge a merger.

One of the major merger enforcement actions in 2013 related to the American Airlines merger with US Airways Group Inc, which created the world's largest airline by traffic. The transaction was challenged on multiple fronts, including a customer lawsuit, and a separate challenge by the DOJ, six state attorneys general and the District of Columbia (DC). The DOJ alleged that the combination would result in increased ticket fares and ancillary fees, and would make it easier for the remaining carriers to co-ordinate fee increases. The agency was especially concerned that the combined company would control nearly 70% of the takeoff and landing slots at Reagan National Airport serving Washington DC. The DOJ, six state attorneys general and DC dropped their challenge after the parties agreed to divest departure gates and 138 takeoff and landing slots to low-cost carriers.

 
8. What, if any, arguments can be used to counter competition issues (efficiencies, customer benefits)?

The agencies consider reasonably available and reliable evidence when considering whether a merger may substantially lessen competition. This includes in varying degrees:

  • Evidence and arguments related to market definition.

  • Market share.

  • Market power.

  • Efficiencies.

  • Potential for entry.

 
9. Is it possible for the merging parties to raise a failing firm defence?

A failing firm defence, and to a lesser extend a flailing firm defence (typically in the case of a competitor firm that has become weakened or less effective, though not, strictly speaking, failing), is available. However, it is a difficult argument to raise successfully. For the agencies to recognise the defence that the assets of the failing firm would exit the market, the evidence must convincingly establish that:

  • The firm would not be able to meet its financial obligations in the near future.

  • It would not be able to successfully reorganise in bankruptcy.

  • The firm made good-faith efforts to elicit alternative offers that would keep the assets in the market and pose less danger to competition than the proposed transaction.

 

Remedies, penalties and appeal

10. What remedies (commitments or undertakings) can be imposed as conditions of clearance to address competition concerns? At what stage of the procedure can they be offered and accepted?

The agencies recognise that effective merger remedies can include structural remedies, conduct remedies or some combination of each. Additionally, each can be used to preserve competition in the appropriate circumstances. However, the agencies have a preference for structural remedies that involve the sale of physical assets or the sale or licensing of intellectual property rights as these are relatively easy to administer and likely to preserve competition.

Conduct remedies that direct aspects of the merged firm's post-completion business conduct are used less frequently for a variety of reasons. Conduct remedies are more complicated to administer and monitor. However, they can be appropriate in certain cases and the agencies use them in those cases. For example, conduct remedies are more likely for vertical cases, though not exclusively. Agreeing to a remedy with the agency and moving to final consent decree is typically a time consuming process. It also adds two to three months to the review.

Remedies can be offered and accepted at any stage, from a pre-emptory "fix-it-first" to a court imposed remedy post litigation. However, remedies are most commonly settled and memorialised in a court ordered consent decree during or after Second Request compliance. Offering robust remedies early in the process is a strategy that can expedite the review and settlement in some cases, but only where such remedies are acceptable to the buyer.

 
11. What are the penalties for failing to comply with the merger control rules?

Failure to notify correctly

Failure to file notification when required can result in a statutory penalty of up to US$16,000 per day for the time of the violation. However, the extent of the penalty often depends on the circumstances of the case. First time and inadvertent offenders are likely to be penalised less or sometimes not at all, while intentional or repeat offenders can receive stiff penalties. The agencies are not afraid to impose the maximum penalty in particularly serious cases.

Implementation before approval or after prohibition

Before the transaction has cleared the merger review process, no party to a proposed transaction can, actually or in effect (HSR Act):

  • Combine any activities of the businesses.

  • Act jointly.

  • Exercise any attributes of beneficial ownership over either the totality of the businesses or over the other party's business.

That conduct is regarded as either:

  • Making the acquisition before the date when the HSR Act would permit it.

  • A violation of either:

    • section 1 of the Sherman Act, which prohibits agreements that unreasonably restrain trade; or

    • section 5 of the FTC Act, which prohibits unfair methods of competition.

Implementation before approval (gun-jumping) can result in monetary penalties or the unwinding of the transaction. The agencies are active in enforcement in this area. Penalties in some cases exceeded US$1 million. Premature implementation of a transaction even where a filing was properly made can result from overzealous integration planning activities. This results in beneficial ownership or control moving to the buyer before formal closing occurs.

Failure to observe

Failure to comply with the terms of a consent decree settlement can have a range of implications, including selling off "crown-jewel" assets by a monitor trustee. A crown jewel is typically a more marketable and more desirable asset or asset package that a party agrees would be sold if the party fails to secure an acceptable buyer for the original asset package. Failure to timely divest can also constitute an order violation and subject the parties to penalties and other relief under section 5(l) of the FTC Act plus additional penalties from provisions in the consent decree that are triggered by the failure to comply.

 
12. Is there a right of appeal against the regulator's decision and what is the applicable procedure? Are rights of appeal available to third parties or only the parties to the decision?

Rights of appeal

All aspects of orders made by the FTC or by a court are appealable. This includes restrictions relating to implementation of the transaction, divestiture orders and other remedial orders. The DOJ does not issue its own orders.

Procedure

Appeals of FTC orders are made to the US Court of Appeals. Appeals of Federal District Court orders are also made to the US Court of Appeals. Appeals must be made within 30 days of a decision. They can take up to six months or more to complete.

Third party rights of appeal

Third parties do not have standing to intervene or to seek the overturning of a decision on the merger in a challenge brought by the agency. However, they can bring their own case.

Automatic clearance of restrictive provisions

 
13. If a merger is cleared, are any restrictive provisions in the agreements automatically cleared? If they are not automatically cleared, how are they regulated?

Merger review is not a clearance process. The agencies retain jurisdiction to challenge any transaction after completion of the review process. Therefore, any potentially anti-competitive provisions remain subject to challenge. These challenges are most likely in cases where the provisions at issue result in actual anti-competitive effects after the transaction is implemented.

 

Regulation of specific industries

14. What industries (if any) are specifically regulated?

There are exemptions to the notification requirements for certain banking transactions. Transactions requiring approval under section 1843 of title 12 or section 1464 of title 12 are exempt from notification if copies of information and documentary material filed with the regulatory agency are also filed with the agencies 30 days before closing.

 

Joint ventures

15. How are joint ventures analysed under competition law?

Joint ventures and other minority investments are subject to notification where the applicable thresholds are met. Substantively, the agencies examine joint ventures similarly to mergers, though ancillary issues can also arise. These can relate, for example, to ensuring that the joint venture is not utilised as a conduit for the flow of competitively sensitive information from one party to the other.

 

Proposals for reform

16. Are there any proposals for reform concerning merger control?

No major reform initiatives are currently pending. Several significant changes to the notification requirements and procedure were made in 2013, including the withdrawal and refiling rule, and expansion of the HSR Act reporting and waiting period obligations for certain pharmaceutical, biologics and medicine manufacturing licences.

 

Online resources

Federal Trade Commission (FTC)

W www.ftc.gov/about-ftc/bureaus-offices/bureau-competition

Description. This is the official website of the FTC Bureau of Competition. It is updated regularly and available in English only.

Department of Justice (DOJ)

W www.justice.gov/atr

Description. This is the official website of the US DOJ, Antitrust Division official website. It is updated regularly and available in English only.



The regulatory authority

United States Department of Justice (US DOJ), Antitrust Division

Head. William J Baer (Presidential Appointee)
Contact details. 950 Pennsylvania Avenue, Washington, DC 20530-0001
T +1 202 514 2558 (Premerger Notification Unit)
E antitrust.atr@usdoj.gov
F +1 202 514 2363 (Premerger Notification Unit)
W www.justice.gov/atr

Outline structure. The Antitrust Division is organised into several units, each with specific subject area responsibility, including:

  • Networks and technology enforcement.
  • Telecommunications and media enforcement.
  • Transportation, energy and agriculture.
  • National criminal enforcement.
  • Economic analysis group.
  • Appellate section.
  • Pre-merger notification.
  • Foreign commerce.
  • Legal policy.
  • Regional offices.

In addition, there are several specialised litigation sections that have primary responsibility for specific industries and commodities. There is some overlap in industry specific expertise between the Federal Trade Commission and the US Department of Justice, Antitrust Division. Therefore, it is not always immediately clear which agency will investigate a particular transaction.

Responsibilities. The mission of the Antitrust Division is to promote economic competition through enforcing and providing guidance on anti-trust laws and principles.

Procedure for obtaining documents. Publicly available documents are available on the agency's website.

Federal Trade Commission (FTC)

Head. The Commission is headed by five commissioners that serve a seven-year term. They are nominated by the President and confirmed by the Senate. No more than three commissioners can be from the same political party. The President chooses one commissioner as chairman. The post is currently held by Chairwoman Edith Ramirez. The other commissioners currently are Julie Brill, Maureen K Ohlhausen and Joshua D Wright.

Contact details. 600 Pennsylvania Avenue, NW, Washington, DC 20580
T +1 202 326 2222
E HSRhelp@hsr.gov (Premerger Notification Office)
W www.ftc.gov

Outline structure. The FTC is organised into the following two main units:

  • Bureau of Competition.
  • Bureau of Consumer Protection.

The Bureau of Competition is responsible for mergers. The bureau is further organised into several smaller units with specific industry area expertise, plus regional offices. There is some overlap in industry specific expertise between the FTC and the US DOJ, Antitrust Division. Therefore, it is not always immediately clear which agency will investigate a particular transaction.

Responsibilities. The FTC's mission is to:

  • Prevent business practices that are anti-competitive, deceptive or unfair to consumers.
  • Enhance informed consumer choice and public understanding of the competitive process.
  • Accomplish this without unduly burdening legitimate business activity.

The Bureau of Competition seeks to prevent anti-competitive mergers and other anti-competitive business practices.

Procedure for obtaining documents. Publicly available documents are available at the agency website.



Contributor profiles

Alicia Batts, Partner

Proskauer Rose

T +202 416 6812
F +202 416 6899
E abatts@proskauer.com
W www.proskauer.com

Professional qualifications. Partner admitted in US Court of Appeals, District of Columbia Circuit; US District Court, District of Columbia; US District Court, New York, Eastern District; US District Court, New York, Southern District

Areas of practice. Antitrust; pharmaceuticals; automotive; financial services; manufacturing; communications.

Non-professional qualifications. Harvard College, AB; Columbia University School of Law, JD

Recent transactions

  • Representing Grifols in its US$4.2 billion acquisition of Talecris Biotherapeutics.
  • Representing Ares in its US$6 billion purchase of Neiman Marcus.
  • Representing Grifols in its US$1.7 billion purchase of Novartis Diagnostics.
  • Representing a major collector and provider of derivatives pricing data in a United States Department of Justice (DOJ) investigation.

Professional associations/memberships. ABA Antitrust Section; Vice Chair ABA Healthcare Section; Member of the board of directors of the Appleseed Foundation.

Publications

  • Proskauer Publication, Better vs. Cheaper? Court Says Cost Trumps Quality in Health Care – Orders Undoing of Physician Group Tie-up, February 2014.
  • Proskauer Publication, Federal Trade Commission Announces 2014 Threshold Revisions for HSR Act and for Clayton Act Section 8 Prohibition on Interlocking Directorates, January 2014.
  • ABA International Antitrust Committee Newsletter, Summer 2013.
  • International Lawyer 2012 Antitrust Year in Review: United States, May 2013.
  • Global Competition Review Single-Firm Conduct Enforcement in the US - Year in Review, 2012.

John Ingrassia, Special Counsel

Proskauer Rose

T +202 416 6869
F +202 416 6899
E jingrassia@proskauer.com
W www.proskauer.com

Professional qualifications. Special Counsel admitted in District of Columbia Court of Appeals; New York State Supreme Court, Appellate Divisions; US Court of Appeals, Fourth Circuit

Antitrust; chemicals; pharmaceutical; medical devices; telecommunications; financial services; health care.

Non-professional qualifications. Hofstra University School of Law, JD; Pace University, BA

  • Representing Sherman Health Systems in its merger with Advocate Health Care.
  • Representing Grey Mountain Partners in the sale of Robbins Holdings, Inc to HEXPOL AB.
  • Representing West Virginia United Health Systems in its acquisition and affiliation with Camden-Clark Memorial Hospital and St. Joseph's Hospital in Parkersburg, West Virginia.
  • Representing Suburban Propane Partners, LP in its US$1.8 billion acquisition of the retail propane assets and operations of Inergy, LP and certain of its affiliates.
  • Representing New York Downtown Hospital in its strategic alliance with New York Presbyterian Hospital.

American Bar Association (Antitrust Law Section); New York State Bar Association (Antitrust Law Section); District of Columbia Bar (Former Chair of Antitrust and Consumer Law Committee, International Law Section, Former Community Outreach Liaison, International Law Section).

Publications.

  • Proskauer Publication, Better vs. Cheaper? Court Says Cost Trumps Quality in Health Care – Orders Undoing of Physician Group Tie-up, February 2014.
  • Proskauer Publication, Federal Trade Commission Announces 2014 Threshold Revisions for HSR Act and for Clayton Act Section 8 Prohibition on Interlocking Directorates, January 2014.
  • ABA International Antitrust Committee Newsletter US Antitrust Enforcement: New Chiefs, Same Global Focus, Summer 2013.
  • Proskauer Client Alert, Re-Animator or Dead Man Walking? FTC Says No to Zombie Deal Reviews – Formalizes Withdrawal and Refiling Procedure, July 2013.

Rhett Krulla, Special Counsel

Proskauer Rose

T +202 416 6833
F +202 416 6899
E rkrulla@proskauer.com
W www.proskauer.com

Professional qualifications. Special Counsel admitted in US District Court, District of Columbia; Deputy Assistant Director, Federal Trade Commission Bureau of Competition; FTC Representative for Clearance Negotiations with DOJ, Antitrust Division, 2002-2004

Areas of practice. Antitrust; life sciences; health care; financial services.

Non-professional qualifications. St. John's University School of Law, JD, Thomas More Scholar; City College of the City University of New York, MA

Recent transactions

  • Representing Grifols in its US$3.4 billion acquisition of Talecris Biotherapeutics.

  • Representing a major vaccine company in partnership negotiation, proposed acquisitions and representation before the FTC.

  • Representing a major collector and provider of derivatives pricing data in a United States Department of Justice (DOJ) investigation.

Professional associations/memberships. American Bar Association Antitrust Law Section; American Economic Association; Board member of Council for Court Excellence; International Competition Network (Mergers Working Group, Investigative Techniques Subgroup).

Publications. Proskauer Publication, Federal Trade Commission Announces 2014 Threshold Revisions for HSR Act and for Clayton Act Section 8 Prohibition on Interlocking Directorates, January 2014.


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