Examples of Litigated Merger Work
In one transaction before the Department of Justice, I cleared a merger where the two parties had 100% of the market (a “2-to-1 merger”), by showing convincingly that there were no barriers to entry. Timing was essential, since the target was in bankruptcy, and other bidders argued that our client would never get antitrust clearance.
In an energy transaction before the FTC, I headed a team of 6 economists and over 15 fact witnesses to clear a merger transaction in only 17 days (when the FTC's initial reaction was that the clearance would take months to clear, if at all). Timing was critical, since the seller needed to complete the sale to avoid triggering a cascading series of bankruptcies.
In another high-profile “3-to-2 merger” before the FTC, the agency initially condemned it as dangerously increasing concentration. Competing bidders told the FTC that they were better acquisition candidates with no antitrust problems. In spite of this, we used economic evidence to show both that there were no credible competing bids, and that the remaining market could still respond competitively to any hypothetical pricing increases. This was a bankruptcy situation again, where urgent clearance was vital to preserve the value of the failing company. This strategy protected our client from losing the bid to smaller competitors, who told the bankruptcy court that they had an “antitrust advantage.”
I was a member of the transaction and litigation team in FTC v. Steris and Synergy (2015), 133 F.Supp.3d 962. The FTC moved for a preliminary injunction to block this international merger. After a full hearing, the court overwhelmingly ruled in our favor on every point and the FTC abandoned its case. This was one of the very rare times that private parties defeated the FTC in a litigated merger battle.