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Bureau of Competition

Department of Justice

Antitrust Division

hart-scott-rodino annual report

Fiscal Year 2008

Section 7A of the Clayton Act

Hart-Scott-Rodino Antitrust Improvements Act of 1976

(Thirty-first Annual Report)

Jon Leibowitz

Chairman

Federal Trade Commission

Christine A. Varney

Assistant Attorney General

Antitrust Division

INTRODUCTION

The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act or the Act),

together with Section 13(b) of the Federal Trade Commission Act and Section 15 of the Clayton

Act, enables the Federal Trade Commission (Commission) and the Antitrust Division of the

Department of Justice (Antitrust Division or Division) to obtain effective preliminary relief

against anticompetitive mergers and to prevent interim harm to competition and consumers. The

premerger notification program was instrumental in detecting transactions that were the subject

of the numerous enforcement actions brought in fiscal year 2008 1 to protect consumers –

individual, business, and government – against anticompetitive mergers.

The Commission and the Antitrust Division continue their efforts to protect competition

by identifying and investigating those mergers and acquisitions that raise potentially significant

competitive concerns. In fiscal year 2008, 1,726 transactions were reported under the HSR Act,

representing about a 22% decrease from the 2,201 transactions reported in fiscal year 2007 and

about a 65% decrease from the 4,926 transactions reported in fiscal year 2000, the last full fiscal

year under the previous reporting thresholds. 2 (See Figure 1 below.)

HSR Merger Transactions Reported

Fiscal Years 1999-2008

6,000

4,926

4,642

Number of Transactions

5,000

4,000

3,000

2,376

2,201

1,675

2,000

1,768

1,726

1,428

1,187

1,014

1,000

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Fiscal year

(Figure 1)

During the year, the Commission challenged 21 transactions, leading to 13 consent

orders, two administrative complaints, of which one was also litigated in federal court, and six

abandoned or restructured transactions. One of the Commission’s notable challenges was

against the consummated merger of Polypore International and Microporous Products in which

The fiscal year covers the period of October 1, 2007 through September 30, 2008.

The decrease in the number of reportable transactions since fiscal year 2000 is, to a considerable extent, a

result of the significant statutory changes to the HSR Act that took effect on February 1, 2001. The legislation

raised the size-of-transaction threshold from $15 million to $50 million (with annual adjustments for changes in

gross national product that began in 2005), and made other changes to the filing and waiting period requirements. In

fiscal year 2008, the threshold was adjusted to $63.1 million. Section 630 of the Department of Commerce, Justice,

and State, the Judiciary, and Related Agencies Appropriations Act, FY 2001, Pub. L. No. 106-553, 114 Stat. 2762.

See also Appendix A.

the Commission asserted that the February 2008 acquisition reduced competition and raised

prices in the markets for multiple types of battery separator film used in the power supplies of

various vehicles and in battery backup generators. The Commission also challenged and

effectively blocked the proposed merger of Inova Health System Foundation and Prince William

Health System, which would have substantially harmed competition in the Northern Virginia

market for general acute care inpatient hospital services.

The Antitrust Division challenged 16 merger transactions, leading to 15 consent decrees

and one transaction that was restructured after the Division informed the parties of its antitrust

concerns relating to the transaction. Notably, the Division obtained a consent decree requiring

UnitedHealth Group to divest most of its assets relating to its Medicare Advantage business in

the Las Vegas area in order to proceed with its acquisition of Sierra Health Services, thereby

protecting senior citizens from anticompetitive effects likely to have resulted from the merger in

the Las Vegas Medicare Advantage health insurance market. The Division also obtained a

consent decree requiring that two mills that produced coated recycled boxboard be divested in

order to remedy the anticipated anticompetitive effects of the proposed merger of Altivity

Packaging and Graphic Packaging International in the market for a type of paperboard used to

make folding cartons, including cereal boxes.

In fiscal year 2008, the Commission’s Premerger Notification Office (PNO) continued to

respond to thousands of telephone calls seeking information concerning the reportability of

transactions under the HSR Act and the details involved in completing and filing the Notification

and Report Form (the filing form). The HSR website, www.ftc.gov/bc/hsr/, continued to provide

improved access to information necessary to the notification process. The website includes basic

resources such as introductory guides that provide an overview of the premerger notification

program and merger review process. It is the primary source of information for HSR

practitioners seeking information on the HSR form and instructions, the premerger notification

statute and rules, current filing thresholds, notices of grants of early termination, filing fee

instructions, scheduled HSR events, training materials for new HSR practitioners, tips for

completing the filing form, procedures for submitting post-consummation filings, and frequently

asked questions regarding the HSR filing requirements. Web users can also find up-to-date

information on changes to the Act and amendments to the premerger rules, including speeches,

press releases, summaries and highlights, and Federal Register notices about the amendments.

The website also includes a database of informal interpretation letters, giving the public ready

access to PNO staff interpretations of the premerger notification rules and the Act. As always,

PNO staff is available to assist HSR practitioners comply with HSR notification requirements.

BACKGROUND OF THE HSR ACT

Section 201 of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. No.

94-435, amended the Clayton Act by adding a new Section 7A, 15 U.S.C §18a. In general, the

HSR Act requires that certain proposed acquisitions of voting securities or assets must be

reported to the Commission and the Antitrust Division prior to consummation. The parties must

then wait a specified period, usually 30 days (15 days in the case of a cash tender offer or a

bankruptcy sale), before they may complete the transaction. Whether a particular acquisition is

subject to these requirements depends upon the value of the acquisition and, in certain

acquisitions, the size of the parties as measured by their sales and assets. Small acquisitions,

acquisitions involving small parties, and other classes of acquisitions that are less likely to raise

antitrust concerns are excluded from the Act’s coverage.

The primary purpose of the statutory scheme, as the legislative history makes clear, is to

provide the antitrust enforcement agencies with the opportunity to review mergers and

acquisitions before they occur. The premerger notification program, with its filing and waiting

period requirements, provides the agencies with both the time and the information necessary to

conduct this antitrust review. Much of the information for a preliminary antitrust evaluation is

included in the notification filed with the agencies by the parties to the proposed transactions and

is immediately available for review during the waiting period.

If either agency determines during the waiting period that further inquiry is necessary,

however, the agency is authorized by Section 7A(e) of the Clayton Act to issue a request for

additional information and documentary material (second request). The second request extends

the waiting period for a specified period (usually 30 days, but 10 days in the case of a cash tender

offer or bankruptcy sale) after all parties have complied with the request (or, in the case of a

tender offer or a bankruptcy sale, after the acquiring person complies). This additional time

provides the reviewing agency with the opportunity to analyze the information and to take

appropriate action before the transaction is consummated. If the reviewing agency believes that

a proposed transaction may substantially lessen competition, it may seek an injunction in federal

district court to prohibit consummation of the transaction. The Commission may also challenge

the transaction in administrative litigation.

The Commission, with the concurrence of the Assistant Attorney General for the

Antitrust Division, promulgated final rules implementing the premerger notification program on

July 31, 1978. At that time, a comprehensive Statement of Basis and Purpose was also

published, containing a section-by-section analysis of the rules and an item-by-item analysis of

the filing form. 3 The program became effective on September 5, 1978. The Commission, with

the concurrence of the Assistant Attorney General, has amended the rules and the filing form on

several occasions over the years to improve the program's effectiveness and to lessen the burden

of complying with the rules. 4

A STATISTICAL PROFILE OF THE PREMERGER NOTIFICATION PROGRAM

The appendices to this report provide a statistical summary of the operation of the

premerger notification program. Appendix A shows, for a ten-year period, the number of

transactions reported, the number of filings received, the number of merger investigations in

which second requests were issued, and the number of transactions in which requests for early

termination of the waiting period were received, granted, and not granted. 5 Appendix A also

43 Fed. Reg. 33450 (July 31, 1978).

43 Fed. Reg. 34443 (August 4, 1978); 43 Fed. Reg. 36053 (August 15, 1978); 44 Fed. Reg. (November

21, 1979); 45 Fed. Reg. 14205 (March 5, 1980); 48 Fed. Reg. 34427 (July 29, 1983); 50 Fed. Reg. 46633

(November 12, 1985); 51 Fed. Reg. 10368 (March 26, 1986); 52 Fed. Reg. 7066 (March 6, 1987); 52 Fed. Reg.

20058 (May 29, 1987); 54 Fed. Reg. 214251 (May 18, 1989); 55 Fed. Reg. 31371 (August 2, 1990); 60 Fed. Reg.

40704 (August 9, 1995); 61 Fed. Reg. 13666 (March 28, 1996); 63 Fed. Reg. 34592 (June 25, 1998); 66 Fed. Reg.

8680 (February 1, 2001); 66 Fed. Reg. 8723 (February 1, 2001); 66 Fed. Reg. 16241 (March 23, 2001); 66 Fed. Reg.

23561 (May 9, 2001); 66 Fed. Reg. 35541 (July 6, 2001); 67 Fed. Reg. 11898 (March 18, 2002); 67 Fed. Reg. 11904

(March 18, 2002); 68 Fed. Reg. 2425 (January 17, 2003); 70 Fed. Reg. 4988 (January 31, 2005); 70 Fed. Reg. 11501

(March 8, 2005); 70 Fed. Reg. 11526 (March 8, 2005); 70 Fed. Reg. 47733 (August 15, 2005); 70 Fed. Reg. 73369

(December 12, 2005; 70 Fed Reg. 77312 (December 30, 2005); 71 Fed. Reg. 2943 (January 18, 2006); 71 Fed. Reg.

35995 (June 23, 2006); 72 Fed. Reg. 2692 (January 22, 2007).

The term "transaction," as used in Appendices A and B, and Exhibit A to this report, does not refer only

to separate mergers or acquisitions. A particular merger, joint venture or acquisition may be structured such that it

involves more than one transaction. For example, cash tender offers, options to acquire voting securities from the

shows for fiscal years 1999 through 2008 the number of transactions in which second requests

could have been issued, as well as the percentage of transactions in which second requests were

issued. Appendix B provides a month-by-month comparison of the number of transactions

reported and the number of filings received for fiscal years 1999 through 2008.

The statistics set out in these appendices show that the number of transactions reported in

fiscal year 2008 decreased 22% from the number of transactions reported in fiscal year 2007. In

fiscal year 2008, 1,726 transactions were reported, while 2,201 were reported in fiscal year 2007.

The statistics in Appendix A also show that the number of merger investigations in which second

requests were issued in fiscal year 2008 decreased by 35% from the number of merger

investigations in which second requests were issued in fiscal year 2007. Second requests were

issued in 41 merger investigations in fiscal year 2008 (21 issued by the FTC and 20 issued by the

Division), while second requests were issued in 63 merger investigations in fiscal year 2007 (31

issued by the FTC and 32 issued by the Division). The percentage of transactions resulting in

second requests also decreased, from 3.0% in fiscal year 2007 to 2.5% in fiscal year 2008. (See

Figure 2 below.)

Percentage of Transactions Resulting in Second Request

Fiscal Years 1999-2008

5.0%

4.3%

4.5%

3.6%

Percent of Transactions

4.0%

3.0%

3.1%

3.5%

3.0%

2.6%

2.5%

2.1%

2.5%

2.0%

1.5%

1.0%

0.5%

0.0%

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

Fiscal year

(Figure 2)

The statistics in Appendix A also show that early termination of the waiting period was

requested in the majority of transactions. In fiscal year 2008, early termination was requested in

80% (1,385) of the transactions reported, down slightly from fiscal year 2007 where it was

requested in 84% (1,840) of the transactions reported. Similarly, the percentage of requests

granted out of the total requested decreased slightly from 76%in fiscal year 2007 to 74% in fiscal

year 2008.

Statistical tables (Tables I through XI) in Exhibit A contain information about the

agencies’ enforcement activities for transactions reported in fiscal year 2008. The tables

provide, for various statistical breakdowns, the number and percentage of transactions in which

issuer, or options to acquire voting securities from someone other than the issuer, may result in multiple acquiring or

acquired persons that necessitate separate HSR transaction numbers to track the filing parties and waiting periods.

clearances to investigate were granted by one antitrust agency to the other and the number of

merger investigations in which second requests were issued. Table III of Exhibit A shows that,

in fiscal year 2008, clearance was granted to one or the other of the agencies for the purpose of

conducting an initial investigation in 17.7% of the total number of adjusted HSR transactions.

The tables also provide the number of transactions based on the dollar value of transactions

reported and the reporting threshold indicated in the notification report.

The total dollar value of reported transactions rose dramatically from fiscal years 1996 to

2000 from about $677.4 billion to about $3 trillion. After the statutory thresholds were raised,

the dollar value declined to about $1 trillion in fiscal year 2001, $565.4 billion in fiscal year

2002, and $406.8 billion in fiscal year 2003. This was followed by an increase in the dollar

value of reported transactions over the next four years: about $630 billion in fiscal year 2004,

$1.1 trillion in fiscal year 2005, $1.3 trillion in fiscal year 2006, and almost $2 trillion in 2007.

The total dollar value of reported transactions declined in fiscal year 2008 to just over $1.3

trillion. 6

Tables X and XI provide the number of transactions by industry group in which the

acquiring person or the acquired entity derived the most revenue. Figure 3 illustrates the

percentage of reportable transactions within industry groups for fiscal year 2008 based on the

acquired entity’s operations. 7

Percentage of Transactions By Industry Group of Acquired Entity

Fiscal Year 2008

Health Services,

2.3%

Chemicals &

Pharmaceuticals,

5.2%

Transportation,

1.6%

Energy & Natural

Resources, 6.1%

Consumer Goods &

Services, 22.5%

Information

Technology, 6.9%

Other, 21.7%

Manufacturing,

13.8%

Banking &

Insurance, 19.9%

(Figure 3)

The information on the value of reported transactions for fiscal year 2008 is drawn form the Premerger

Database, while data for the previous fiscal years is taken from the corresponding fiscal year Annual HSR Reports

(http://www ftc.gov/bc/anncompreports.shtm)

The “Other” category consists of industry segments that include construction, educational services,

performing arts, recreation and non-classifiable establishments.

DEVELOPMENTS WITHIN THE PREMERGER PROGRAM

1. Compliance

The Commission and the Antitrust Division continued to monitor compliance with the

premerger notification program’s filing and waiting period requirements and initiated a number

of compliance investigations in fiscal year 2008. The agencies monitor compliance through a

variety of methods, including the review of newspapers and industry publications for

announcements of transactions that may not have been reported in accordance with the

requirements of the Act. In addition, industry sources, such as competitors, customers and

suppliers, and interested members of the public, often provide the agencies with information

about transactions and possible violations of the Act’s requirements.

Under Section 7A(g)(1) of the Act, any person that fails to comply with the Act’s

notification and waiting period requirements is liable for a civil penalty of up to $11,000 –

recently increased to $16,000 – for each day the violation continues. 8 The antitrust agencies

examine the circumstances of each violation to determine whether penalties should be sought. 9

During fiscal year 2008, 48 corrective filings for violations were received.

During fiscal year 2008, the agencies brought two enforcement actions, resulting in the

payment of $1.65 million in civil penalties.

In United States v. Iconix Brand Group, Inc., 10 the complaint alleged that Iconix Brand

Group failed to produce certain pertinent documents before buying the Rocawear brand. The

HSR Act and Rules require parties to a transaction that requires premerger reporting to supply

with their notification certain documents prepared or reviewed by the company's officers and

directors in connection with their evaluation or analysis of competitive aspects of the proposed

transaction. Iconix submitted no such documents, despite the fact that such documents existed,

including a formal presentation made to its Board of Directors about the transaction and a less

formal e-mail among officers and directors. In addition, when initially asked to review whether

such documents existed, the company falsely reaffirmed that no such documents existed. Under

the terms of a consent decree that was filed simultaneously with the complaint and entered by the

Court on October 16, 2007, Iconix agreed to pay $550,000 in civil penalties to settle the charges.

In United States v. ValueAct Capital Partners, L.P., 11 the complaint alleged that

ValueAct, a San Francisco-based investment fund, violated premerger reporting requirements by

failing to file before making acquisitions of voting securities of three issuers in 2005. Each of

the three acquisitions, when aggregated with ValueAct’s prior holdings of each issuer, resulted in

holdings sufficient to trigger the HSR Act notification and waiting period requirements. In 2003,

ValueAct had made corrective HSR filings relating to three other failures to file and had outlined

Dollar amounts specified in civil monetary penalty provisions within the Commission’s jurisdiction are

adjusted for inflation in accordance with the Debt Collection Improvement Act of 1996, Pub. L. No. 104-134 (April

26, 1996). The adjustments have included an increase in the maximum civil penalty from $10,000 to $11,000 for

each day during which a person is in violation under Section 7A(g)(1) (61 Fed. Reg. 54548 (October 21, 1996),

corrected at 61 Fed. Reg. 55840 (October 29, 1996)) and to $16,000 effective February 10, 2009 (74 Fed. Reg. 85701 (January 9, 2009)).

When the parties inadvertently fail to file, the enforcement agencies generally do not seek penalties

where the parties promptly make corrective filings after discovering the failure to file, submit an acceptable

explanation of their failure to file, and have not previously violated the Act.

United States v. Iconix Brand Group, Inc., No. 1:07-CV-01852 (D.D.C. filed October 15, 2007).

United States v. ValueAct Capital Partners, L.P., No. 1:07-CV-02267 (D.D.C. filed December 19, 2007).

steps it would take to avoid future violations. Under the terms of a consent decree that was filed

simultaneously with the complaint and entered by the Court on January 11, 2008, ValueAct

agreed to pay $1.1 million in civil penalties to settle the charges.

2. Threshold Adjustments

The 2000 amendments to Section 7A require the Commission to publish adjustments to

the Act’s jurisdictional and filing fee thresholds annually, based on the change in the gross

national product, in accordance with Section 8(a)(5) for each fiscal year beginning after

September 30, 2004. The Commission in 2005 amended the rules to provide a method for future

adjustments as required by the 2000 amendments and to reflect the revised thresholds in the

examples contained in the rules. The revised thresholds are published annually in January and

are effective 30 days after publication.

On January 29, 2008, the Commission published a notice 12 to reflect adjustment of

reporting thresholds as required by the 2000 amendments 13 to Section 7A of the Clayton Act, 15

U.S.C. 18a. The revised thresholds became effective February 28, 2008.

MERGER ENFORCEMENT ACTIVITY 14

The Department of Justice

During fiscal year 2008, the Antitrust Division challenged 16 merger transactions that it

concluded might have substantially lessened competition if allowed to proceed as proposed. In

15 of these challenges, the Antitrust Division filed a complaint in U.S. district court. All of these

cases were settled by consent decree. In the remaining one challenge to a merger during fiscal

year 2008, when apprised of the Antitrust Division’s concerns regarding the proposed

transaction, the parties restructured their transaction to avoid competitive problems. 15

In United States v. Abitibi-Consolidated Inc. and Bowater Incorporated, 16 the Division

challenged the proposed $1.6 billion merger of Abitibi and Bowater, the two largest newsprint

producers in North America. The complaint alleged that the transaction, as originally proposed,

would have substantially lessened competition in the production and sale of newsprint in North

America. The Division filed a proposed consent decree simultaneously with the complaint,

settling the suit. Under the terms of the decree, Abitibi and Bowater were required to divest

Abitibi’s newsprint mill in Snowflake, Arizona, which is one of the largest and most profitable

mills in North America. In addition, the merged company is required to notify the Division

before acquiring an additional interest in any mill or machine that is jointly-owned by either

73 Fed. Reg. 19 (January 29, 2008).

15 U.S.C. 18a(a). See Pub. L. 106-553, 114 Stat. 2762.

All cases in this report were not necessarily reportable under the premerger notification program.

Because of provisions regarding the confidentiality of the information obtained pursuant to the Act, it would be

inappropriate to identify which cases were initiated under the program except in specific instances where such

information has already been disclosed.

In this instance, the Division informed the parties of its concerns, but did not issue a press release:

proposed acquisition of Nymex Holdings, Inc. by CME Group, Inc. (gold and silver futures).

United States v. Abitibi-Consolidated Inc. and Bowater Incorporated, No. 1:07-CV-01912 (D.D.C. filed

October 23, 2007).

Abitibi or Bowater with any third party if the value of the acquisition exceeds $2 million. The

Court entered the consent decree on November 6, 2008.

In United States v. AT&T Inc. and Dobson Communications Corporation, 17 the Division

challenged the proposed $2.8 billion acquisition of Dobson Communications by AT&T. The

complaint alleged that the transaction, as originally proposed, would have substantially lessened

competition to the detriment of rural consumers of mobile wireless telecommunication services

in seven markets in Kentucky, Missouri, Pennsylvania, Oklahoma and Texas, resulting in higher

prices, lower quality and diminished investment in network improvements. Specifically, in five

of these areas, businesses wholly or partially owned by AT&T and Dobson collectively served

more than 60% of subscribers; in two markets where AT&T’s primary competitor was operating

using a Cellular One license from Dobson, AT&T would have had the incentive and ability to

harm competition by limiting the licensee’s ability to use the Cellular One brand effectively.

The Division filed a proposed consent decree simultaneously with the complaint. Under the

terms of the decree, the combined firm must divest assets to address competitive concerns in

these seven markets, including rights to the Cellular One brand. The Division coordinated with

the Federal Communications Commission throughout its investigation, and the transaction was

also subject to FCC review. The Court entered the consent decree on March 20, 2008.

In United States v. Vulcan Materials Company and Florida Rock Industries, Inc., 18 the

Division challenged the proposed $4.6 billion acquisition of Florida Rock by Vulcan Materials.

The complaint alleged that the transaction, as originally proposed, likely would result in

increased prices for course aggregate in several areas: parts of the Atlanta, GA metropolitan area;

Columbus, GA; Chattanooga, TN; and South Hampton Roads, VA. Course aggregate, a type of

construction aggregate, is crushed stone produced at quarries or mines and is used in a variety of

applications, such as road construction, and for the production of ready mix concrete and asphalt.

The Division filed a proposed consent decree simultaneously with the complaint, requiring

divestiture of eight quarries that produce coarse aggregate in Georgia, Tennessee and Virginia, as

well as one distribution yard in Virginia. The Court entered the consent decree on April 29,

2008.

In United States v. CommScope, Inc. and Andrew Corporation, 19 the Division challenged

CommScope’s proposed $2.6 billion acquisition of Andrew Corporation and simultaneously

filed a consent decree requiring divestiture of Andrew’s minority interest in Andes Industries,

Inc. The complaint alleged that the transaction, as originally proposed, would have substantially

lessened competition in the development, manufacture and sale of drop cable. Drop cable is

coaxial cable used by cable television companies to connect their transmission systems to their

customers’ premises and to the equipment inside the premises. By acquiring Andrew,

CommScope would have obtained Andrew’s 30% ownership interest in Andes, including the

right to appoint members to Andes’ board of directors and substantial governance rights.

CommScope and a subsidiary of Andes, PCT International Inc., were two of only four

companies providing drop cable to cable television companies in the United States, and the

complaint alleged that the transaction would substantially reduce competition in drop cable by

giving CommScope the incentive and ability to coordinate the activities of CommScope and

United States v. AT&T Inc. and Dobson Communications Corporation, No. 1:07-CV-01952 (D.D.C.

filed October 30, 2007).

United States v. Vulcan Materials Company and Florida Rock Industries, Inc., No. 1:07-CV-02044

(D.D.C. filed November 13, 2007).

United States v. CommScope, Inc. and Andrew Corporation, No. 1:07-CV-02200 (D.D.C. filed

December 6, 2007).

PCT, or undermine PCT’s ability to compete against CommScope, resulting in higher prices and

reduced innovation. The transaction as originally proposed would also have given CommScope

the ability to participate on both its own board of directors and on the board of its competitor,

Andes, in violation Section 8 of the Clayton Act, which governs interlocking directorates

between competitors. The consent decree, which was entered by the Court on June 23, 2008,

required divestiture of Andrew’s stock ownership and other interests in Andes.

In United States v. Pearson Plc, Pearson Education Inc., Reed Elsevier Plc, Reed

Elsevier NV, and Harcourt Assessment Inc., 20 the Division challenged the proposed acquisition

of Harcourt Assessment, a wholly-owned subsidiary of Reed Elsevier, by Pearson Plc and

Pearson Education. The complaint alleged that the transaction, as originally proposed, would

have resulted in higher prices to purchasers of clinical tests, including many school districts, and

impaired the launch of a competitive new test for adult abnormal personality disorders. Clinical

tests are used by psychologists, speech-language pathologists, and clinicians, among others, to

test for and diagnose individuals with disorders or disabilities, as well to identify individuals at

risk for such disorders or disabilities. Publishers, including Pearson and Harcourt, develop, edit,

standardize, norm-reference, market and sell clinical tests for a wide range of disorders and

disabilities. The Division filed a proposed consent decree simultaneously with the complaint.

Under the terms of the decree, Pearson was required to divest assets relating to three clinical

testing markets. Specifically, the required divestiture included: Harcourt’s Adaptive Behavior

Assessment System, an adaptive behavior clinical test; Harcourt’s Emotional Assessment

System, an adult abnormal personality clinical test; and either Pearson’s Comprehensive

Assessment of Spoken Language and Oral Written Language Scales, or Harcourt’s Clinical

Evaluation of Language Fundamentals, in the speech and language clinical test market. The

Court entered the consent decree on June 2, 2008.

In United States v. Bain Capital, LLC, Thomas H. Lee Partners, L.P. and Clear Channel

Communications, Inc., 21 the Division challenged the proposed acquisition of a controlling

interest in Clear Channel Communications by a group of private equity investors led by Bain

Capital and Thomas H. Lee Partners (THL). The complaint alleged that the transaction, as

originally proposed, would have resulted in increased prices and reduced levels of service in the

sale of radio advertising time in the Cincinnati, OH, Houston, TX, Las Vegas, NV, and San

Francisco, CA areas because of substantial ownership interests held by Bain and THL in two

firms, Cumulus Media Partners LLC and Univision Communications Inc., that own radio

stations that compete with Clear Channel stations in those cities. Bain and THL have ownership

interests in Cumulus Media Partners, a large nationwide operator of radio stations, and THL has

an ownership interest in Univision Communications, a nationwide radio station operator

primarily broadcasting in Spanish. The Division filed a proposed consent decree simultaneously

with the complaint, requiring Clear Channel to divest radio stations in the four affected cities.

The Court entered the consent decree on July 29, 2008.

In United States v. The Thomson Corporation and Reuters Group PLC, 22 the Division

challenged Thomson’s proposed $17 billion acquisition of Reuters. The complaint alleged that

the acquisition, as originally proposed, likely would have led to higher prices and reduced

United States v. Pearson Plc, Pearson Education Inc., Reed Elsevier Plc, Reed Elsevier NV, and

Harcourt Assessment Inc., No. 1:08-CV-00143 (D.D.C. filed January 24, 2008).

United States v. Bain Capital, LLC, Thomas H. Lee Partners, L.P. and Clear Channel Communications,

Inc., No. 1:08-CV-00245 (D.D.C. filed February 13, 2008).

United States v. The Thomson Corporation and Reuters Group PLC, No. 1:08-CV-00262 (D.D.C. filed

February 19, 2008).

innovation for three important types of financial data utilized by investment managers,

investment bankers, traders, corporate managers and other institutional customers in making

investment decisions and providing advice to their firms and clients: fundamentals data,

earnings estimates data and aftermarket research reports. The Division filed a proposed consent

decree simultaneously with the complaint, settling the suit. Under the terms of the decree, which

was entered by the Court on June 17, 2008, Thomson is required to sell financial data and related

assets in the three affected markets. With these assets, the acquirer of each set of data will be

able to offer products comparable to those offered by Thomson or Reuters prior to the merger.

The remedies required by the consent decree were consistent with those obtained by the

European Commission as a result of its antitrust investigation. The Division and the European

Commission cooperated extensively throughout the course of their investigations, with frequent

contact between the investigative staffs and the sharing of documents and information with the

consent of the parties who provided them. The Division also cooperated extensively with the

Canadian Competition Bureau.

In United States v UnitedHealth Group Inc. and Sierra Health Services, Inc., 23 the

Department challenged the proposed acquisition of Sierra Health Services by UnitedHealth

Group. The complaint alleged that the transaction, as originally proposed, would have created a

combined company controlling 94% of the Medicare Advantage health insurance market in the

Las Vegas area, resulting in higher prices, fewer choices and a reduction in the quality of

Medicare Advantage plans purchased by senior citizens in that area. Individuals eligible for

Medicare, primarily senior citizens, may elect to enroll in a privately provided Medicare

Advantage plan instead of traditional Medicare. In establishing the Medicare Advantage

program, Congress intended that vigorous competition among private Medicare Advantage

insurers would lead insurers to offer seniors more affordable benefits, provide a wider array of

health insurance choices and be more responsive to the demands of such seniors. About 82,000

individuals in Clark and Nye counties, which make up the Las Vegas area, were enrolled in

Medicare Advantage plans, accounting for $840 million of annual commerce. The Division filed

a proposed consent decree simultaneously with the complaint, requiring United to divest most of

its assets relating to its Medicare Advantage business in the Las Vegas area. Further, under the

terms of the decree, enrollees in United’s Medicare Advantage plans would continue to receive

substantially the same access to providers, including doctors, hospitals and other medical

services, following the divestiture. The Court entered the consent decree on September 24, 2008.

The Division worked closely with the Nevada Attorney General’s office in investigating the

United-Sierra merger.

In United States v. Cookson Group, plc, Cookson America Inc., Foseco plc and Foseco

Metallurgical Inc., 24 the Division challenged the proposed $1 billion acquisition of Foseco plc

by Cookson Group plc. The complaint alleged that the transaction, as originally proposed,

would have substantially lessened competition in the United States for certain carbon bonded

ceramics (CBCs) used in the continuous casting steelmaking process, resulting in increased

prices and reduced service and innovation. CBCs are products made of carbon-bonded alumina

graphite that control the flow of molten steel during the continuous casting of steel. Cookson

and Foseco were two of only three competitors that produced CBCs in North America. The

Division filed a proposed consent decree simultaneously with the complaint. Under the terms of

United States v. UnitedHealth Group Inc. and Sierra Health Services, Inc., No. 1:08-CV-00322 (D.D.C.

filed February 25, 2008).

United States v. Cookson Group, plc, Cookson America Inc., Foseco plc and Foseco Metallurgical Inc.,

No. 1:08-CV-00389 (D.D.C. filed March 4, 2008).

the decree, the parties were required to divest Foseco’s entire U.S. CBC business, including its

plant in Saybrook, Ohio, and related assets. The remedy contained in the settlement was

consistent with that obtained as a result of an antitrust investigation undertaken by the European

Commission. The Division and the European Commission cooperated throughout the course of

their respective investigations. The Court entered the decree on May 23, 2008.

In United States v. Altivity Packaging LLC and Graphic Packaging International, Inc., 25

the Division challenged the proposed $1.75 billion merger of Altivity Packaging and Graphic

Packaging International. The complaint alleged that the transaction, as originally proposed,

would have substantially lessened competition in the production and sale of a type of paperboard

– coated recycled boxboard (CRB) – used to make folding cartons for consumer and commercial

packaging, including cereal boxes. The merger would have produced a single firm with about

42% of the production and sale of CRB in North America. The Division filed a proposed

consent decree simultaneously with the complaint. Under the terms of the decree, divestiture

was required of two mills that had been owned and operated by Altivity, one in Wabash, Indiana

and the other in Philadelphia. Altivity's Santa Clara, California mill would be divested if for any

reason divestiture of the Philadelphia mill were not accomplished. The Court entered the decree

on July 15, 2008.

In United States v. Regal Cinemas, Inc. and Consolidated Theatres Holding, GP, 26 the

Division challenged Regal Cinemas’ proposed acquisition of Consolidated Theatres Holding.

The complaint alleged that the transaction, as originally proposed, would have substantially

lessened competition in the theatrical exhibition of commercial first-run movies in the Charlotte,

Raleigh and Asheville, North Carolina metropolitan areas, resulting in higher ticket prices and

decreased quality viewing experience for moviegoers. The Division filed a proposed consent

decree simultaneously with the complaint. Under the terms of the decree, Regal and

Consolidated were required to divest the following movie theaters: the Crown Point 12 in

Charlotte; the Raleigh Grand 16 in Raleigh; the Town Square 10 in Garner (a suburb of Raleigh);

and the Hollywood 14 in Asheville. The Court entered the consent decree on October 29, 2008.

In United States v. Cengage Learning Holdings I, L.P. Cengage Learning Holdings II,

L.P., Cengage Learning, Inc., APAX/TL Holdings, LLC, Education Media and Publishing Group

Limited, and Houghton Mifflin Harcourt Publishing Company, 27 the Division challenged the

proposed $750 million acquisition by Cengage Learning, Inc. of Houghton Mifflin Harcourt

Publishing Company's College Division. The complaint alleged that the transaction, as

originally proposed, was likely to substantially lessen competition in the development,

publication and sale of textbooks and ancillary materials used in 14 college-level courses,

resulting in higher prices and lower quality for these products. The Division filed a proposed

consent decree simultaneously with the complaint. The decree required Cengage to divest assets

related to textbooks and educational materials used in those 14 college-level courses in the fields

of business, foreign languages, history and interdisciplinary studies, including all tangible and

non-tangible assets related to the textbooks and materials including finished textbooks,

publishing and licensing rights, author contracts and original artwork. The Court entered the

United States v. Altivity Packaging LLC and Graphic Packaging International, Inc., No. 1:08-CV-00400

(D.D.C. filed March 25, 2008).

United States v. Regal Cinemas, Inc. and Consolidated Theatres Holding, GP, No. 1:08-CV-00746

(D.D.C. filed April 29, 2008).

United States v. Cengage Learning Holdings I, L.P., Cengage Learning Holdings II, L.P., Cengage

Learning, Inc., APAX/TL Holdings, LLC, Education Media and Publishing Group Limited, and Houghton Mifflin

Harcourt Publishing Company, No. 1:08-CV-00899 (D.D.C. filed May 28, 2008).

decree on September 19, 2008.

In United States et al. v. Verizon Communications Inc. and Rural Cellular Corporation, 28

the Division and the State of Vermont challenged Verizon Communication’s proposed $2.7

billion acquisition of Rural Cellular Corp. (RCC), a mobile wireless telecommunications services

provider that did business under the Unicel name. The complaint alleged that the transaction, as

originally proposed, would have substantially lessened competition to the detriment of

consumers of mobile wireless telecommunications services in six geographic areas in Vermont,

New York, and Washington, likely resulting in higher prices, lower quality and reduced network

investments. Verizon and RCC were the most significant competitors in these six areas, and in

each case collectively served more than 60% of subscribers. The Division filed a proposed

consent decree simultaneously with the complaint. The decree, which was entered by the Court

on April 24, 2009, requires Verizon to divest assets in the six geographic areas at issue. The

Division coordinated with the FCC throughout its investigation, and the acquisition was also

subject to FCC review.

In United States v. Signature Flight Support Corporation and Hawker Beechcraft

Services, Inc., 29 the Division challenged the proposed acquisition of Hawker Beechcraft

Services’ United States fixed based operations (FBOs) by Signature Flight Support. The

complaint alleged that the transaction, as originally proposed, would have combined the only two

providers of FBO services to general aviation customers at Indianapolis International Airport and

substantially lessened competition, resulting in higher prices and reduced service and innovation.

FBOs provide flight support services – including fueling, ramp and hangar rentals, office space

rentals, and other services – to general aviation customers, which include charter, private, and

corporate aircraft operators. The Division filed a proposed consent decree simultaneously with

the complaint, requiring the divestiture of either Signature or Hawker Beechcraft FBO assets at

Indianapolis International Airport to a purchaser who has the capability to compete effectively in

the provision of FBO services to general aviation customers at that airport. The Court entered

the decree on October 29, 2008.

In United States v. Raycom Media, Inc., 30 the Division challenged Raycom's April 2008

acquisition of the Richmond, Virginia, NBC affiliate, WWBT-TV, from Lincoln Financial

Media Company. The complaint alleged that the transaction resulted in Raycom owning two of

the four local broadcast stations in Richmond, likely leading to higher prices to advertise on local

broadcast television. The Division filed a proposed consent decree simultaneously with the

complaint, requiring Raycom to divest the local CBS affiliate in Richmond, WTVR-TV.

Previously, before Raycom and Lincoln closed their transaction on April 1, 2008, they entered

into an agreement with the Department. Because FCC limitations on television station

ownership would require Raycom to sell one of its two Richmond television stations, Raycom

agreed to sell WTVR-TV to a purchaser approved by the Division, within 90 days of closing its

transaction with Lincoln. According to that agreement, if Raycom failed to divest WTVR-TV by

the agreed upon deadline, the Division would file the lawsuit and settlement that it eventually

filed. Raycom also agreed to preserve and hold separate that station pending its sale, thus

maintaining competition in the Richmond local television spot advertising market. The Court

entered the decree on December 4, 2008.

United States and the State of Vermont v. Verizon Communications Inc. and Rural Cellular Corporation,

No. 1:-8-CV-00993 (D.D.C. filed June 10, 2008).

United States v. Signature Flight Support Corporation and Hawker Beechcraft Services, Inc., No. 1:08CV-01164 (D.D.C. filed July 3, 2008).

United States v. Raycom Media, Inc., No. 1:08-CV-01510 (D.D.C. filed August 28, 2008).

Additionally, during fiscal year 2008, the Division initiated civil contempt proceedings in

two instances where parties had failed to fulfill obligations imposed upon them by judicial

decrees in previous Division merger challenges. On November 26, 2007, the Division filed a

petition in the U.S. District Court for the District of Columbia asking it to find Cal Dive

International, Inc. and its parent company, Helix Energy Solutions Group Inc. (collectively Cal

Dive), in civil contempt of a decree entered by the Court in 2006 in United States v. Cal Dive

International, Inc., et al. 31 Under the 2006 consent decree, Cal Dive was required to divest two

saturation diving vessels, including the Seaway Defender, and a separate saturation diving

system. The decree also required Cal Dive not to impede the divestiture or operation of the

assets to be sold. According to the Division’s civil contempt petition, Cal Dive engaged in a

course of conduct that delayed the sale of the Seaway Defender and other assets, enabling it to

continue to profit from the use of the Seaway Defender during the period of high demand for

saturation diving vessels due to clean up from Hurricane Katrina and Hurricane Rita. Further,

the petition alleged that after the Court appointed a trustee to sell the Seaway Defender, Cal Dive

failed to divest the Seaway Defender in the same condition as Cal Dive acquired the vessel in the

acquisition that prompted the 2006 decree. The Division filed a proposed settlement

simultaneously with the petition, requiring Cal Dive to pay $2 million as part of a civil

settlement to resolve Cal Dive’s alleged violations of the 2006 decree. The $2 million payment

represents disgorgement of profits and reimbursement to the Division for the cost of its

investigation. The Court approved the settlement on November 26, 2007.

On December 3, 2007, the Division and the State of Minnesota filed a petition in the U.S.

District Court for the District of Minnesota asking it to find ALLTEL Corporation in civil

contempt of a consent decree entered by the Court on January 8, 2007 in United States v.

ALLTEL Corp. and Midwest Wireless Holdings 32 and a related Court order. Under the decree

and Court order, ALLTEL was required to divest mobile wireless telecommunications businesses

in four rural service areas in southern Minnesota, and to take specific measures to preserve the

assets to be divested in a manner that would maintain their competitive viability. The civil

contempt petition alleged that ALLTEL failed to fulfill those obligations. According to the

petition, ALLTEL failed to adhere to its existing plans for capital improvements, upgrades, and

maintenance schedules and failed to provide relevant information about ALLTEL’s capital

improvement plans to the management trustee that was appointed to oversee the businesses to be

divested. ALLTEL also allegedly provided the management trustee with misleading reports

about the progress of capital improvement projects scheduled by the management trustee. The

Division and Minnesota filed a proposed settlement simultaneously with the petition, requiring

ALLTEL to pay $1.325 million as part of civil settlement for its alleged violation of the two

court orders. Of the $1.325 million payment, $745,000 was required to go to the State of

Minnesota and the remainder to the U.S. Treasury. The Court approved the settlement on

December 4, 2007. The Division coordinated with Minnesota and the FCC throughout its

investigation.

See the HSR Annual Report, Fiscal Year 2006 for a description of this case.

The Federal Trade Commission

The Commission challenged 21 transactions that it had reason to believe may have

lessened competition if allowed to proceed as proposed during fiscal year 2008, 33 leading to 13

consent orders, two administrative complaints, and six transactions where the parties either

abandoned the proposed deal or where the transactions were restructured after FTC staff

informed the parties of its antitrust concerns relating to the transaction. In one of the matters in

which an administrative complaint was authorized, the Commission also authorized staff to seek

injunctive relief in federal court; in this case the parties abandoned the transaction while in

litigation due to antitrust concerns surrounding their proposed acquisition.

In Inova Health System Foundation/Prince William Health System Inc., 34 the

Commission sought a preliminary injunction and a temporary restraining order to block Inova

Health System Foundation’s proposed acquisition of Prince William Health System, pending a

full administrative trial on the merits. The Commission’s complaint alleged that the acquisition

would have violated federal antitrust laws by lessening competition for general acute care

inpatient hospital services in the Northern Virginia market, leading to higher prices for

consumers, and reduced incentives for non-price based competition. The merger would have

resulted in Inova controlling 73% of the licensed hospital beds in Northern Virginia, and six of

the ten hospitals in the region, and would have eliminated direct competition between the parties,

which allows health care plans to negotiate for lower prices. On June 6, 2008, the parties

publicly announced their mutual decision to terminate the proposed acquisition agreement during

the preliminary injunction and temporary restraining order proceeding, and the Commission

subsequently dismissed its administrative complaint on June 17, 2008.

In the matter of Polypore International, Inc., 35 the Commission issued an administrative

complaint challenging Polypore’s consummated acquisition of Microporous Products in the

global market for battery separators, a key component in flooded lead-acid batteries. According

to the Commission’s complaint, the acquisition, which occurred in February 2008, substantially

lessened competition and led to higher prices in several North American product markets

including 1) deep-cycle separators used in golf carts, 2) motive separators for batteries used

primarily in forklifts, 3) automotive separators used in car batteries, and 4) uninterruptible power

supply separators used in batteries that provide backup power during power outages.

Additionally, the complaint alleged that Polypore engaged in anticompetitive conduct by

entering into a joint marketing agreement with a competitor, restricting the competitor’s entry

into the polyethylene battery separator markets. The complaint also charged that Polypore

sought to maintain monopoly power through anticompetitive means in several battery separator

markets. This proceeding is now before the Commission’s Administrative Law Judge.

In fiscal year 2008, the Commission accepted consent agreements and issued proposed

orders for public comment in 13 merger cases. Nine of the Consent Orders became final in fiscal

year 2008; four became final in fiscal year 2009.

In Kyphon Inc./Disc-O-Tech Medical Technologies LTD, 36 the Commission challenged

To avoid double counting, this report includes only those merger enforcement actions in which the

Commission took its first public action during fiscal year 2007.

FTC v. Inova Health System Foundation, Civ. Act. No. 1:08cv460-CMH/JFA (E.D. Va. May 12, 2008).

FTC v. Polypore International, Inc., Dkt. No. 9327 (administrative complaint issued Sept. 9, 2008).

In the matter of Kyphon Inc. and Disc-O-Tech Medical Technologies LTD, Docket No. C-4201 (issued

Oct. 9, 2007).

Kyphon, Inc’s proposed $220 million acquisition of the spinal assets, including the B-Twin, Sky

Bone Expander, and Confidence product lines, of Disc-O-Tech Medical Technologies, Ltd,

alleging that the acquisition would have been anticompetitive in the U.S. market for minimally

invasive vertebral compression fracture (MIVCF) treatment products. The Commission’s

complaint stated that the proposed acquisition as structured would eliminate Kyphon’s main

competitor in the MIVCF market, and that entry by another competitor would have been unlikely

or insufficient to offset the anticompetitive effects of the proposed acquisition. To settle the

Commission’s concerns, the parties agreed to a consent order requiring Disc-O-Tech to divest all

assets pertaining to its Confidence product line, including tangible and intellectual property, and

any licensing or permits required for the manufacture, sale, and distribution of such products to

an FTC-approved buyer.

In Owens Corning, 37 the Commission charged that Owens Corning’s proposed

acquisition of the glass fiber reinforcements and composite fabric assets of Compagnie de Saint

Gobain would have substantially lessened competition in the North American market for

continuous filament mat (CFM) products. According to the Commission’s complaint, the market

for CFM was highly concentrated and Owens Corning and Saint Gobain, the two largest

competitors in the market in recent years, together account for more than 90% of the CFM sold

in North America. According to the consent order settling the Commission’s charges, Owens

Corning agreed to divest its CFM business within 10 days of acquisition to AGY, and its

Huntingdon CFM facility and marbles furnace in South Carolina. This matter was reviewed in

cooperation with the European Commission and the Mexican Federal Competition Commission.

In Schering-Plough Corporation, 38 the Commission challenged Schering-Plough

Corporation’s proposed $14.4 billion acquisition of Organon BioSciences from Akzo-Nobel due

to alleged anticompetitive effects in the U.S. markets for the manufacture and development of

three common poultry vaccines. According to the Commission’s complaint, the proposed

acquisition would have substantially lessened competition in the highly concentrated markets for

the three vaccines used to prevent poultry from developing (1) the Georgia 98 strain of

bronchitis, (2) fowl cholera, and (3) mycoplasma gallisepticum, thus likely leading to higher

prices for these vaccines for companies in the poultry industry. To settle the anticompetitive

concerns, the Commission approved a consent order under which Schering-Plough agreed to

divest the rights and assets necessary to develop, manufacture, and market Avimune IB98,

CHOLERVAC-PM-1, and F VAX-MG lines to Wyeth with 10 days of the acquisition. This

transaction was also reviewed by both the European Commission’s Competition Directorate and

Canada’s Competition Bureau.

In The Great Atlantic & Pacific Tea Company, Inc./Pathmark Stores Inc., 39 the

Commission challenged A&P’s proposed $1.3 billion acquisition of Pathmark Stores alleging

that the deal would have substantially lessened competition between the two supermarket firms

in Staten Island and Long Island, New York. A&P operates 316 supermarkets in 5 states in the

mid-Atlantic and northeast regions, as well as the District of Columbia, under various different

banners. Pathmark operates 141 Pathmark supermarkets in four states. According to the

Commission’s complaint, the proposed deal would have allowed A&P to exercise market power

and raise prices for various food and grocery items, and would also lead to the increased

In the matter of Owens Corning, Docket No. C-4210 (issued Oct. 26, 2007).

In the matter of Schering Plough Corporation, Docket No. C-4211 (issued Nov. 16, 2007).

In the matter of The Great Atlantic & Pacific Tea Company, Inc. and Pathmark, Docket No. C-4209

(issued Nov. 27, 2007).

likelihood that supermarket operators in Staten Island and Long Island engage in coordinated

interaction. Remedying these concerns, the Commission approved a consent order requiring

A&P to sell six supermarket locations in these highly concentrated New York markets.

In TALX Corporation, 40 the Commission challenged a series of acquisitions by TALX

Corporation, a fully owned subsidiary of Equifax, Inc., that lessened competition in the markets

for outsourced unemployment compensation management (UCM) and verification of income and

employment (VOIE) services. Unemployment compensation management services consist of the

administration of unemployment compensation claims filed with a state or territory. Verification

of income and employment service consists of providing income and employment information

on behalf of employers to third parties, such as lenders or other creditors. The series of

transactions in question were consummated between 2002 and 2005 and include the purchases of

James E Frick, Inc., the UCM business of Gates McDonald & Company, Johnson & Associates,

the UCM and VOIE assets of Sheakley-Uniservice, TBT Enterprises, and UI Advantage, and the

UCM business of Employers Unity. According to the Commission’s complaint, the series of

acquisitions substantially reduced competition in the nationwide provision of VOIE services and

in the provision of outsourced UCM services, and enhanced TALX’s ability to unilaterally

increase prices and decrease the quality of its services. To settle the Commission’s concerns,

TALX agreed to a consent order designed to promote entry of competitors into the relevant

markets. Specifically, under the terms of the order, Talx agreed to allow certain customers under

contract with TALX to terminate their agreements with notice to outsource the relevant services

with a competitor; restrict acquisitions or contractual dealings that TALX may enter into

regarding the relevant products; and give notice before acquiring, or entering a management

contract with a UCM or VOIE service provider.

In Agrium Inc./UAP Holding Corporation, 41 the Commission charged that Agrium, Inc.’s

$2.65 billion acquisition of UAP Holding Corporation would lessen competition for farm stores

and the retail sale of bulk fertilizer in several U.S. markets. Both companies operate competing

stores in the relevant geographic market which includes the central “thumb” of Michigan,

east/central Michigan, and the eastern shore of Maryland. According to the complaint filed by

the Commission, the proposed acquisition eliminated the existing competition between Agrium

and UAP, allowing Agrium to unilaterally increase prices with unlikely entry of new

competitors, and an increased likelihood that the remaining competitors in the relevant

geographic market would engage in coordinated interaction to the detriment of buyers. To

remedy these competitive concerns, the Commission approved a consent order requiring the

divestiture of seven farm stores consisting of five UAP stores in Michigan, and two Agrium

locations on the eastern shore of Maryland.

In PQ Corporation/INEOS Group Ltd., 42 the Commission challenged the combination of

PQ Corporation and INEOS Group, alleging that the deal would be anticompetitive in the highly

concentrated Midwestern market for sodium silicate. According to the Commission’s complaint,

the acquisition would have joined PQ, the geographic market leader with a 50% market share

with INEOS, the third-largest sodium silicate provider in the relevant market with a 12% market

share. The complaint further alleged that due to the nature of the product market, the proposed

acquisition would not only have substantially lessened competition in the geographic market, but

also would have increased the likelihood of coordinated interaction among the remaining

In the matter of Talx Corporation, Docket No. C-4228 (issued Apr. 28, 2008).

In the matter of Agrium Inc. and UAP Holding Corporation, Docket No. C-4219 (issued May 5, 2008).

In the matter of PQ Corporation and INEOS Group Ltd., Docket No. C-4233 (issued Jun. 30, 2008).

competitors in the market, with a minimal likelihood that entry would be likely, timely, or

sufficient enough to counteract the anticompetitive effects. To resolve these concerns, the

Commission approved a consent order under which PQ agreed to divest its sodium silicate plant

in Utica, Illinois, and all associated intellectual property required to operate the plant to Oak Hill

acquisition Company within five days of consummating the transaction.

In Flow International Corp., 43 the Commission challenged Flow International

Corporation’s proposed $109 million acquisition of rival waterjet manufacturer OMAX

Corporation. Both corporations develop, manufacture, and sell computerized waterjet cutting

systems which manage the waterjet cutting process whereby pressurized water is mixed with

abrasive garnet particles to cut various materials, including steel and stone. According to the

Commission’s complaint, the proposed acquisition would unite the two largest competitors in the

market for the manufacture and sale of computerized waterjet cutting systems allowing Flow to

exercise market power and increase prices. Furthermore, the Commission charged that entry

would be unlikely because OMAX received two broad patents relating to the control systems for

waterjet cutting systems. To remedy these anticompetitive effects, the Commission approved a

consent agreement requiring OMAX to grant any requesting competitor with a royalty-free

license to its controller patents.

In Pernod Ricard S.A., 44 the Commission challenged Pernod Ricard’s proposed $9 billion

acquisition of V&S Vin & Sprit as anticompetitive in the market for “super-premium” vodka.

The proposed deal would have merged the two leading brands in the relevant product market,

Absolut and Stolichnaya. According to the Commission’s complaint, joining the two brands,

which are the first choices of many consumers of super premium vodka, would have allowed

Pernod to impose an anticompetitive price increase. Additionally, the complaint alleged that the

markets for cognac, domestic cordials, coffee liqueur, and popular gin would also have been

subject to anticompetitive effects because sensitive pricing and promotion information for Beam

Global Brands, a competitor in these product markets, would have become available to Pernod

after the acquisition as a result of Beam’s joint venture with V&S. To settle the FTC’s

challenge, Pernod agreed to divest its distribution interests in Stolichnaya Vodka and to erect a

firewall to protect any competitively sensitive information regarding competing Beam Global

Brands from being made available to Pernod employees.

In McCormick & Company Inc., 45 the Commission challenged McCormick & Company’s

$605 million acquisition of Lawry’s and Adolph’s brands of seasoned salt products from

Unilever, alleging that the transaction would have substantially lessened competition in the

highly concentrated U.S. market for seasoned salts. According to the Commission’s complaint,

the proposed deal would have combined the two companies that comprise almost the entire $100

million market for seasoned salt, increasing the likelihood that McCormick would be able

unilaterally to increase prices. To settle these concerns, McCormick agreed to divest its SeasonAll business, which consists of a product line of six varieties of seasoned salts, to Morton, an

FTC approved buyer, within 10 days of completing the acquisition.

In the matter of Flow International Corp., Docket No. C-4231 (issued Jul. 10, 2008).

In the matter of Pernod Ricard S.A., Docket No. C-4224 (issued Jul. 17, 2008).

In the matter of McCormick & Company, Inc., Docket No. C-4225 (issued Jul. 30, 2008).

In Sun Pharmaceutical Industries Ltd., 46 the Commission charged that Sun

Pharmaceuticals’ proposed acquisition of Taro pharmaceuticals would have substantially

lessened competition, and thus likely would have resulted in higher prices for three distinct

generic formulations of the anticonvulsant drug carbamazepine, used widely as an anti-epileptic

drug taken alone daily, or in conjunction with other medications to prevent and control seizures.

According to the Commission’s complaint, the proposed deal would reduce the number of

competitors in a relevant product market where the number of competitors has a direct and

substantial impact on generic drug prices. To remedy these concerns, Sun agreed to divest all of

its rights and assets needed to develop three generic forms of carbamazepine: 1) immediaterelease tablets; 2) chewable tablets; and 3) extended-release tablets.

In Fresenius Medical Care AG & Co. KGaA/Daiichi Sankyo Company Ltd., 47 the

Commission challenged Fresenius Medical Care’s proposed acquisition of an exclusive

sublicense for the manufacture and supply of the drug Venofer to U.S. dialysis clinics from

Daiichi Sankyo Company. Venofer is an intravenously administered iron sucrose preparation

used primarily to treat iron-deficiency anemia in patients with chronic kidney disease that are

undergoing dialysis. According to the FTC’s complaint, the agreement would have given

Fresenius the ability to artificially inflate its internal costs for Venofer, and effectively increase

Medicare reimbursement payments for all buyers of the drug. To settle these concerns, the

Commission and Fresenius entered into a consent agreement that restricts Fresenius from

reporting internally inflated Venofer prices by mandating that the current market price for the

drug be used in reporting the average selling price to Medicare.

In Reed Elsevier PLC/ChoicePoint Inc., 48 the Commission issued a complaint charging

that Reed Elsevier’s $4.1 billion proposed acquisition of ChoicePoint would have been

anticompetitive, combining the two largest providers of electronic public record services for U.S.

law enforcement customers. Public records services compile public and non-public records

about people and businesses, including credit data, criminal, motor vehicle, property, and

employment records, all used by law enforcement as an investigative tool in solving a wide

variety of crimes. The transaction, as proposed, would have substantially lessened competition,

removing the intense rivalry that had lead to lower prices, product innovations, and improved

services and support for law enforcement customers, and likely would have allowed LexisNexis

unilaterally to raise prices for these services. To remedy these concerns, the Commission

approved a consent order requiring the divestiture of ChoicePoint’s AutoTrackXP and CLEAR

product lines to Thomson Reuters Legal Inc. within 15 days of consummating the transaction.

The Commission worked with the Attorneys General of 18 states on this investigation.

ONGOING REASSESSMENT OF THE EFFECTS OF THE PREMERGER

NOTIFICATION PROGRAM

The Commission and the Antitrust Division continually review the impact of the

premerger notification program on the business community and antitrust enforcement. As

indicated in past annual reports, the HSR program ensures that virtually all significant mergers or

acquisitions that affect consumers in the United States will be reviewed by the antitrust agencies

In the matter of Sun Pharmaceuticals Industries Ltd., Docket No. C-4230 (issued Aug. 13, 2008).

In the matter of Fresenius Medical Care AG & Co. KGaA and Daiichi Sankyo Company Ltd., Docket

No. C-4236 (issued Sept. 15, 2008).

In the matter of Reed Elsevier PLC and ChoicePoint Inc., Docket No. C-4XXX (issued Sept. 15, 2008).

prior to consummation. The agencies generally have the opportunity to challenge unlawful

transactions before they occur, thus avoiding the problem of constructing effective postacquisition relief. As a result, the HSR Act is doing what Congress intended, giving the

government the opportunity to investigate and challenge mergers that are likely to harm

consumers before injury can arise. Prior to the premerger notification program, businesses

could, and frequently did, consummate transactions that raised significant antitrust concerns

before the antitrust agencies had the opportunity to consider adequately their competitive effects.

The enforcement agencies were forced to pursue lengthy post-acquisition litigation, during the

course of which harm from the consummated transaction continued (and afterwards as well,

where achievement of effective post-acquisition relief was not practicable). Because the

premerger notification program requires reporting before consummation, this problem has been

significantly reduced.

Always cognizant of the program’s impact and effectiveness, the enforcement agencies

continue to seek ways to speed up the review process and reduce burdens for companies. As in

past years, the agencies will continue their ongoing assessment of the HSR program to increase

accessibility, promote transparency, and to reduce the burden on the filing parties without

compromising the agencies’ ability to investigate and interdict proposed transactions that may

substantially lessen competition.

LIST OF APPENDICES

Appendix A -

Summary of Transactions, Fiscal Years 1999 - 2008

Appendix B -

Number of Transactions Reported and Filings Received by Month

for Fiscal Years 1999 - 2008

LIST OF EXHIBITS

Exhibit A -

Statistical Tables for Fiscal Year 2008, Presenting Data Profiling

Hart-Scott-Rodino Premerger Notification Filings and

Enforcement Interest

APPENDIX A

SUMMARY OF TRANSACTIONS

FISCAL YEARS 1999 - 2008

APPENDIX A

SUMMARY OF TRANSACTION BY YEAR

1999

2000

Transactions Reported

4,642

4,926 2,376 1,187 1,014 1,428 1,675 1,768 2,201 1,726

Filings Received1

9,151

9,941 4,800 2,369 2,001 2,825 3,287 3,510 4,378 3,455

4,340

4,749 2,237 1,142

968

1,377 1,610 1,746 2,108 1,656

111

1.0%

0.9%

1.2%

2.4%

1.5%

1.6%

1.5%

1.3%

1.6%

1.2%

1.9%

2.1%

1.1%

1.6%

1.0%

1.5%

1.2%

4,110

4,324 2,063 1,042

700

1,241 1,385 1,468 1,840 1,385

Granted5

3,103

3,515 1,603

793

606

943

997

1,098 1,402 1,021

Not Granted5

1,007

809

249

298

388

370

Adjusted Transactions In Which A

Second Request Could Have Been

Issued2

Investigations in Which Second Requests

Were Issued

FTC3

Percent4

DOJ3

Percent4

Transactions Involving a Request For

Early Termination5

2001

460

2002

2003

2004

2005

2006

2007

2008

438

364

Note: The data for FY 2004 and FY 2005 “Transactions Reported” and for FY 2004 – FY 2007 “Filings Received” reflect corrections to

prior Annual reports to account for a coding error.

Usually, two filings are received, one from the acquiring person and one from the acquired person when a transaction is reported. Only one application is received when an

acquiring party files for an exemption under section 7A (c )(6) or (c )(8) of the Clayton Act.

These figures omit from the total number of transactions reported all transactions for which the agencies were not authorized to request additional information. These include (1)

incomplete transactions (only one party filed a complete notification); (2) transactions reported pursuant to the exemption provisions of sections 7A (c) (6) and 7A(c)(8) of the Act;

and (3) transactions which were found to be non-reportable. In addition, where a party filed more than one notification in the same year to acquire voting securities of the same

corporation, e.g., filing one threshold and later filing for a higher threshold, only a single consolidated transaction has been counted because as a practical matter the agencies do

not issue more than one Second Request in such a case. These statistics also omit from the total number the transactions reported secondary acquisitions filed pursuant to 801.4 of

the Premerger Notification rules. Secondary acquisitions have been deducted in order to be consistent with the statistics presented in most of the prior annual reports.

These statistics are based on the date the request was issued and not the date the investigation was opened.

Second Requests investigations are a percentage of the total number of adjusted transactions. The total percentage reflected in Figure 2 may not equal the sum of reported

component values due to rounding.

These statistics are based on the date of the H-S-R filing and not the date action was taken on the request.

APPENDIX B

NUMBER OF TRANSACTIONS REPORTED

AND

FILINGS RECEIVED BY MONTH

FOR

FISCAL YEARS 1999 - 2008

APPENDIX B

TABLE 1. NUMBER OF TRANSACTIONS REPORTED BY MONTH FOR

FISCAL YEARS 1998 - 2007

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

October

333

376

360

139

130

201

158

November

359

428

451

105

104

127

160

148

189

191

December

394

468

345

143

126

137

151

172

January

282

335

245

111

138

142

143

158

February

330

440

109

124

157

119

March

427

455

120

109

137

121

150

194

131

April

364

343

127

121

125

156

128

May

438

398

153

111

125

171

158

250

150

June

445

494

190

117

153

172

202

146

July

444

351

121

123

118

141

219

128

August

434

446

163

134

170

186

200

126

September

392

108

159

155

139

119

TOTAL

4,642

4,926

2,376

1,187

1,014

1,428

1,675

1,768

2,201

1,726

Note: The data for FY 2004 and FY 2005 “Transactions Reported” reflect corrections to prior Annual reports to account for a coding error.

APPENDIX B

TABLE 2. NUMBER OF FILINGS RECEIVED1 BY MONTH FOR

FISCAL YEARS 1997 - 2008

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

October

662

777

751

190

148

185

277

261

401

319

November

686

839

920

211

206

254

324

311

376

380

December

785

922

686

183

150

280

238

260

294

343

January

548

677

499

224

179

161

259

279

288

316

February

658

867

144

174

146

207

201

257

317

246

March

828

959

243

230

144

277

239

309

381

242

April

719

695

188

203

182

245

242

270

312

272

May

851

859

296

212

168

258

337

300

481

294

June

884

1,004

378

170

158

241

297

346

403

293

July

887

718

182

230

170

234

236

255

441

259

August

885

886

332

191

164

270

328

367

396

251

September

758

738

181

151

186

213

309

295

288

240

TOTAL

9,151

9,941

4,800

2,369

2,001

2,825

3,287

3,510

4,378

3,455

Note: The data for FY 2004 – FY 2007 “Filings Received” reflect corrections to prior Annual reports to account for a coding error.

Usually, two filings are received, one from the acquiring person and one from the acquired person when the transaction is reported. Only one filing is received when an acquiring

person files for a transaction that is exempt under Sections 7A(c)(6) and (c)(8) of the Clayton Act.

EXHIBIT A

STATISTICAL TABLES

FOR

FISCAL YEAR 2008

DATA PROFILING HART-SCOTT-RODINO PREMERGER

NOTIFICATION FILINGS AND ENFORCEMENT INTERESTS

TABLE I

FISCAL YEAR 2008 1

ACQUISITIONS BY SIZE OF TRANSACTION (BY SIZE RANGE)

HSR TRANSACTIONS

TRANSACTION RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

SECOND REQUEST INVESTIGATIONS 3

PERCENT OF

TRANSACTION RANGE

GROUP

NUMBER

PERCENT OF

TRANSACTION RANGE

GROUP

Below 50M

50M - 100M

100M - 150M

150M - 200M

200M - 300M

370

351

137

189

0.5%

22.3%

21.2%

8.3%

11.4%

FTC

DOJ

FTC

22.2%

9.5%

10.3%

8.8%

13.2%

DOJ

0.0%

1.6%

4.6%

0.7%

7.9%

TOTAL

22.2%

11.1%

14.8%

9.5%

21.2%

FTC

DOJ

FTC

0.0%

0.5%

1.1%

0.0%

DOJ

0.0%

0.5%

0.9%

0.0%

0.5%

TOTAL

0.0%

1.1%

2.0%

0.0%

0.5%

300M - 500M

500M - 1000M

Over 1000M

202

226

172

12.2%

13.6%

10.4%

9.9%

10.6%

25.0%

5.4%

8.0%

16.9%

15.3%

18.6%

41.9%

1.5%

2.7%

3.5%

1.5%

1.8%

4.1%

3.0%

4.4%

7.6%

ALL TRANSACTIONS

1,656

100.0%

197

11.9%

5.8%

17.7%

1.3%

1.2%

2.5%

TABLE II

FISCAL YEAR 2008 1

ACQUISITIONS BY SIZE OF TRANSACTION (CUMULATIVE)

HSR TRANSACTIONS

TRANSACTION RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

SECOND REQUEST INVESTIGATIONS 3

PERCENTAGE OF

TOTAL NUMBER OF

CLEARANCES

NUMBER

PERCENT

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

LESS THAN 50 5

0.5%

0.7%

0.0%

0.7%

0.0%

LESS THAN 100

379

22.9%

12.6%

2.0%

14.7%

4.9%

9.8%

LESS THAN 150

730

44.1%

24.9%

7.5%

32.4%

14.6%

12.2%

26.8%

LESS THAN 200

867

52.4%

29.0%

7.8%

36.9%

14.6%

12.2%

26.8%

LESS THAN 300

1,056

63.8%

110

37.5%

13.0%

50.5%

14.6%

29.3%

LESS THAN 500

1,258

76.0%

130

44.4%

16.7%

61.1%

22.0%

43.9%

LESS THAN 1000

1,479

89.3%

152

51.9%

22.5%

74.4%

36.6%

29.3%

65.9%

ALL TRANSACTIONS

1,656

197

67.2%

32.8%

100.0%

51.2%

48.8%

100.0%

TABLE III

FISCAL YEAR 2008 1

TRANSACTIONS INVOLVING THE GRANTING OF CLEARANCE BY AGENCY

CLEARANCE GRANTED AS A PERCENTAGE OF:

CLEARANCES

GRANTED TO

AGENCY

TRANSACTION RANGE

($MILLIONS)

TOTAL NUMBER OF

TRANSACTIONS

TOTAL NUMBER

OF CLEARANCES

PER AGENCY

TOTAL NUMBER OF

CLEARANCES

GRANTED

Below 50M

50M - 100M

100M - 150M

150M - 200M

200M - 300M

FTC

DOJ

TOTAL

FTC

22.2%

9.5%

10.3%

8.8%

13.2%

DOJ

0.0%

1.6%

4.6%

0.7%

7.9%

TOTAL

22.2%

11.1%

14.8%

9.5%

21.2%

FTC

1.0%

17.8%

18.3%

6.1%

12.7%

DOJ

0.0%

6.3%

16.7%

1.0%

15.6%

FTC

0.7%

11.9%

12.3%

4.1%

8.5%

DOJ

0.0%

2.0%

5.5%

0.3%

5.1%

TOTAL

0.7%

14.0%

17.7%

4.4%

13.7%

300M - 500M

500M - 1000M

Over 1000M

9.9%

10.6%

25.0%

5.4%

8.0%

16.9%

15.3%

18.6%

41.9%

10.2%

12.2%

21.8%

11.5%

18.8%

30.2%

6.8%

8.2%

14.7%

3.8%

6.1%

9.9%

10.6%

14.3%

24.6%

ALL TRANSACTIONS

197

293

11.9%

5.8%

17.7%

100.0%

67.2%

32.8%

100.0%

TABLE IV

FISCAL YEAR 2008 1

TRANSACTIONS IN WHICH SECOND REQUESTS WERE ISSUED

TRANSACTION RANGE

($MILLIONS)

INVESTIGATIONS IN

WHICH SECOND

REQUEST WERE

ISSUED 3

SECOND REQUESTS ISSUED AS A PERCENTAGE OF:

TOTAL NUMBER OF

TRANSACTIONS

TRANSACTIONS IN

EACH TRANSACTION

RANGE GROUP

TOTAL NUMBER OF

SECOND REQUEST

INVESTIGATIONS

Below 50M

50M - 100M

100M - 150M

150M - 200M

200M - 300M

FTC

DOJ

TOTAL

FTC

0.0%

0.1%

0.2%

0.0%

DOJ

0.0%

0.1%

0.2%

0.0%

0.1%

TOTAL

0.0%

0.2%

0.4%

0.0%

0.1%

FTC

0.0%

0.5%

1.1%

0.0%

DOJ

0.0%

1.1%

2.0%

0.0%

0.5%

TOTAL

0.0%

1.6%

3.1%

0.0%

0.5%

FTC

0.0%

4.9%

9.8%

0.0%

DOJ

0.0%

4.9%

7.3%

0.0%

2.4%

TOTAL

0.0%

9.8%

17.1%

0.0%

2.4%

300M - 500M

500M - 1000M

Over 1000M

0.2%

0.4%

0.2%

0.4%

0.6%

0.8%

1.5%

2.7%

3.5%

3.0%

4.4%

7.6%

4.5%

7.1%

11.0%

7.3%

14.6%

7.3%

9.8%

17.1%

14.6%

24.4%

31.7%

ALL TRANSACTIONS

1.3%

1.2%

2.5%

1.3%

1.2%

2.5%

51.2%

48.8%

100.0%

TABLE V

FISCAL YEAR 2008 1

ACQUISITIONS BY REPORTING THRESHOLD

HSR TRANSACTIONS

THRESHOLD 6

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

SECOND REQUEST INVESTIGATIONS 3

PERCENT OF

THRESHOLD GROUP

NUMBER

PERCENT OF

THRESHOLD GROUP

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

$50M (as adjusted)

118

7.1%

9.3%

3.4%

12.7%

0.0%

$100M (as adjusted)

164

9.9%

3.7%

4.9%

8.5%

0.0%

$500M (as adjusted)

2.2%

5.6%

11.1%

0.0%

25%

0.4%

0.0%

50%

814

49.2%

120

14.7%

6.6%

21.4%

1.5%

1.2%

2.7%

ASSETS ONLY

518

31.3%

11.2%

5.4%

16.6%

1.7%

1.9%

3.7%

ALL TRANSACTIONS

1,656

100.0%

197

11.9%

5.8%

17.7%

1.3%

1.2%

2.5%

TABLE VI

FISCAL YEAR 2008 1

TRANSACTION BY ASSETS OF ACQUIRING PERSON

HSR TRANSACTIONS

ASSET RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

PERCENT OF

ASSET RANGE

GROUP

SECOND REQUEST INVESTIGATIONS 3

PERCENT OF

ASSET RANGE

GROUP

NUMBER

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

Below 50M

138

8.3%

4.3%

3.6%

8.0%

0.0%

1.4%

50M - 100M

1.6%

14.8%

0.0%

14.8%

0.0%

100M - 150M

2.8%

10.6%

4.3%

14.9%

2.1%

0.0%

2.1%

150M - 200M

1.9%

6.5%

3.2%

9.7%

0.0%

200M - 300M

3.9%

9.2%

1.5%

10.8%

0.0%

1.5%

300M - 500M

116

7.0%

6.9%

0.9%

7.8%

0.0%

500M - 1000M

173

10.4%

6.4%

3.5%

9.8%

1.2%

0.0%

1.2%

Over 1000M

1,059

63.9%

155

14.6%

7.6%

22.2%

1.7%

1.6%

3.3%

ALL TRANSACTIONS

1,656

100.0%

197

11.9%

5.8%

17.7%

1.3%

1.2%

2.5%

TABLE VII

FISCAL YEAR 2008 1

TRANSACTION BY SALES OF ACQUIRING PERSON

HSR TRANSACTIONS

SALES RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

PERCENT OF

SALES RANGE

GROUP

SECOND REQUEST INVESTIGATIONS 3

NUMBER

PERCENT OF

SALES RANGE

GROUP

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

Below 50M

140

8.5%

5.0%

4.3%

9.3%

0.0%

50M - 100M

3.7%

9.7%

6.5%

16.1%

0.0%

1.6%

100M - 150M

2.7%

6.7%

0.0%

6.7%

0.0%

150M - 200M

2.8%

4.3%

2.2%

6.5%

0.0%

200M - 300M

4.3%

9.7%

0.0%

9.7%

4.2%

0.0%

4.2%

300M - 500M

113

6.8%

7.1%

6.2%

13.3%

0.9%

1.8%

500M - 1000M

197

11.9%

6.1%

5.1%

11.2%

0.5%

0.0%

0.5%

Over 1000M

869

52.5%

148

17.0%

7.7%

24.7%

1.8%

2.0%

3.8%

Sales Not Available 7

112

6.8%

3.6%

0.9%

4.5%

0.0%

0.9%

ALL TRANSACTIONS

1,656

100.0%

197

11.9%

5.8%

17.7%

1.3%

1.2%

2.5%

TABLE VIII

FISCAL YEAR 2008 1

TRANSACTION BY ASSETS OF ACQUIRED ENTITIES8

HSR TRANSACTIONS

ASSET RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

PERCENT OF

ASSET RANGE

GROUP

SECOND REQUEST INVESTIGATIONS 3

PERCENT OF

ASSET RANGE

GROUP

NUMBER

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

Below 50M

291

17.6%

8.6%

2.4%

11.0%

0.3%

0.7%

50M - 100M

240

14.5%

14.6%

2.1%

16.7%

0.8%

1.3%

2.1%

100M - 150M

152

9.2%

15.8%

5.3%

21.1%

0.7%

1.3%

150M - 200M

5.6%

4.3%

6.5%

10.9%

1.1%

0.0%

1.1%

200M - 300M

5.5%

9.9%

6.6%

16.5%

1.1%

2.2%

300M - 500M

128

7.7%

13.3%

3.9%

17.2%

2.3%

1.6%

3.9%

500M - 1000M

139

8.4%

15.1%

5.0%

20.1%

3.6%

2.2%

5.8%

Over 1000M

360

21.7%

12.2%

11.7%

23.9%

1.9%

3.9%

Assets Not Available 8

163

9.8%

11.0%

6.1%

17.2%

0.0%

1.2%

ALL TRANSACTIONS

1,656

100.0%

197

11.9%

5.8%

17.7%

1.3%

1.2%

2.5%

TABLE IX

FISCAL YEAR 2008 1

TRANSACTION BY SALES OF ACQUIRED ENTITIES 9

HSR TRANSACTIONS

SALES RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

PERCENT OF

SALES RANGE

GROUP

SECOND REQUEST INVESTIGATIONS 3

PERCENT OF

SALES RANGE

GROUP

NUMBER

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

Below 50M

332

20.0%

13.6%

4.2%

17.8%

0.3%

0.6%

0.9%

50M - 100M

267

16.1%

9.7%

2.6%

12.4%

0.7%

1.1%

1.9%

100M - 150M

152

9.2%

9.9%

5.3%

15.1%

0.0%

0.7%

150M - 200M

6.0%

11.1%

4.0%

15.2%

2.0%

0.0%

2.0%

200M - 300M

117

7.1%

12.8%

6.0%

18.8%

1.7%

3.4%

300M - 500M

149

9.0%

12.1%

4.0%

16.1%

2.7%

0.7%

3.4%

500M - 1000M

134

8.1%

17.2%

6.7%

23.9%

3.7%

1.5%

5.2%

Over 1000M

334

20.2%

10.5%

10.8%

21.3%

1.2%

2.1%

3.3%

Sales not Available 10

4.3%

12.5%

6.9%

19.4%

1.4%

2.8%

4.2%

ALL TRANSACTIONS

1,656

100.0%

197

11.9%

5.8%

17.7%

1.3%

1.2%

2.5%

TABLE X

FISCAL YEAR 2008 1

INDUSTRY GROUP OF ACQUIRING PERSON

3 DIGIT

NAICS

CODE 11

000 13

112

211

212

213

221

236

237

238

311

312

313

315

321

322

323

324

325

326

327

331

INDUSTRY DESCRIPTION

Not Available

Animal Production

Oil and Gas Extraction

Mining (except Oil and Gas)

Support Activities for Mining

Utilities

Construction of Buildings

Heavy and Civil Engineering Construction

Specialty Trade Contractors

Food and Kindred Products

Beverage and Tobacco Product Manufacturing

Textile Mills

Apparel Manufacturing

Wood Product Manufacturing

Paper Manufacturing

Printing and Related Support Actitivies

Petroleum and Coal Products Manufacturing

Chemical Manufacturing

Plastics and Rubber Manfuacturing

Nonmetallic Mineral Product Manufacturing

Primary Metal Manufacturing

NUMBER

PERCENT

OF TOTAL

CHANGE

FROM FY

2007 12

CLEARANCE

GRANTED TO FTC

OR DOJ

SECOND REQUEST

INVESTIGATIONS 3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

133

8.0%

4.5%

0.1%

1.4%

0.1%

0.7%

0.3%

1.0%

0.1%

2.5%

-0.1%

0.4%

0.2%

0.6%

0.4%

0.7%

0.4%

1.5%

-0.1%

0.4%

0.1%

0.2%

0.1%

0.0%

0.1%

-0.2%

0.8%

0.4%

0.3%

-0.5%

0.4%

0.3%

5.3%

-0.6%

1.0%

-0.5%

0.9%

0.2%

1.7%

0.2%

TABLE X

FISCAL YEAR 2008 1

INDUSTRY GROUP OF ACQUIRING PERSON

3 DIGIT

NAICS

CODE 11

332

333

334

335

336

337

339

421

423

424

425

441

443

444

445

446

447

448

451

453

454

INDUSTRY DESCRIPTION

Fabricated Metal Product Manufacturing

Machinery Manufacturing

Computer and Electronic Product Manufacturing

Electrical Equipment, Applicance, and Component

Manufacturing

Transportation Equipment Manufacturing

Furniture and Related Product Manufacturing

Miscellaneous Manufacturing

Wholesale Trade

Merchant Wholesalers, Durable Goods

Merchant Wholesales, Nondurable Goods

Wholesale Electric Markets and Agent and Brokers

Motor Vehicle and Parts Dealers

Miscellaneous Repair Services

Electronics and Appliance Stores

Food and Beverage Stores

Health and Personal Care Stores

Gasoline Stations

Clothing and Clothing Accessories Stores

Sporting Goods, Hobby, Book, and Music Stores

Miscellaneous Store Retailers

Nonstore Retailers

NUMBER

PERCENT

OF TOTAL

CHANGE

FROM FY

2007 12

CLEARANCE

GRANTED TO FTC

OR DOJ

SECOND REQUEST

INVESTIGATIONS 3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

1.6%

-0.3%

2.7%

0.8%

3.1%

0.4%

1.0%

0.3%

1.8%

0.0%

0.3%

0.1%

1.0%

-0.3%

0.1%

-0.1%

107

6.5%

0.6%

4.2%

0.8%

0.1%

0.2%

-0.1%

0.1%

0.2%

0.0%

0.4%

0.1%

0.4%

0.2%

0.1%

-0.2%

0.2%

-0.3%

0.1%

-0.1%

0.1%

-0.2%

0.4%

-0.6%

TABLE X

FISCAL YEAR 2008 1

INDUSTRY GROUP OF ACQUIRING PERSON

3 DIGIT

NAICS

CODE 11

481

483

484

485

486

488

493

509

511

512

515

516

517

518

519

522

523

524

525

531

532

INDUSTRY DESCRIPTION

Air Transportation

Water Transportation

Truck Transportation

Transit and Ground Transportation

Pipeline Transportation

Support Actitivies for Transportation

Warehousing and Storage

Miscellaneous Durable Goods

Publishing Industries (except Internet)

Motion Pictures and Sound Recording Industries

Broadcasting (except Internet)

Internet Publishing and Broadcasting

Telecommunications

Internet Service Providers, Web Search Portals, and Data

Processing Services

Other Information Services

Credit Intermediation and Related Activities

Securitites, Commodity Contracts, and Other Financial

Investments and Related Activities

Insurance Carriers and Related Actitivities

Funds, Trusts, and Other Financial Vehicles

Real Estate

Rental and Leasing Services

NUMBER

PERCENT

OF TOTAL

CHANGE

FROM FY

2007 12

CLEARANCE

GRANTED TO FTC

OR DOJ

SECOND REQUEST

INVESTIGATIONS 3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.4%

0.1%

0.2%

-0.1%

0.2%

-0.1%

0.1%

0.0%

0.3%

0.0%

0.4%

0.0%

0.3%

0.2%

3.6%

-1.0%

0.5%

0.0%

0.5%

-0.1%

0.4%

0.2%

2.5%

0.4%

0.6%

-1.0%

0.2%

0.1%

2.4%

-0.3%

186

11.2%

1.2%

3.9%

1.1%

2.1%

-0.4%

0.7%

0.2%

0.8%

-0.1%

TABLE X

FISCAL YEAR 2008 1

INDUSTRY GROUP OF ACQUIRING PERSON

3 DIGIT

NAICS

CODE 11

533

541

551

561

562

611

621

622

623

624

711

713

721

722

811

812

924

999

INDUSTRY DESCRIPTION

Lessors of Nonfinancial Intangible Assets (except

Copyrighted Works)

Professional, Scientific, and Technical Services

Management Companies and Enterprises

Administrative and Support Services

Waste Management and Remediation Services

Educational Services

Ambulatory Health Care Services

Hospitals

Nursing Care Facilities

Social Assistance

Performing Arts, Spector Sports, and Related Industries

Amusement, Gambling, and Recreation Industries

Accommodation

Food Services and Drinking Places

Repairt and Maintenance

Personal and Laundry Services

Administration of Environmental Quality Programs

Nonclassificable Establishments

NUMBER

PERCENT

OF TOTAL

CHANGE

FROM FY

2007 12

CLEARANCE

GRANTED TO FTC

OR DOJ

SECOND REQUEST

INVESTIGATIONS 3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.4%

-0.3%

5.3%

0.3%

0.2%

2.0%

0.1%

0.7%

0.1%

0.2%

-0.1%

0.5%

-0.5%

1.2%

0.5%

0.1%

-0.3%

0.5%

0.4%

0.3%

0.5%

0.2%

0.1%

-0.1%

0.7%

-0.3%

0.1%

-0.2%

0.2%

0.1%

2.9%

-6.9%

1,656

100.0%

197

293

TABLE XI

FISCAL YEAR 2008

INDUSTRY GROUP OF ACQUIRED ENTITIES

3 DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

CHANGE

PERCENT

FROM FY

OF TOTAL

2007

CLEARANCE

GRANTED TO FTC

OR DOJ

NUMBER OF

3 DIGIT

SECOND REQUEST 3

INTRAINVESTIGATIONS

INDUSTRY

TRANSACTIONS 14

FTC

DOJ TOTAL

FTC

DOJ

TOTAL

0.5%

0.1%

1.4%

-0.9%

Mining (except Oil and Gas)

0.8%

-0.1%

213

Support Activities for Mining

1.1%

-0.3%

221

Utilities

3.6%

-1.7%

Construction of Buildings

0.4%

0.2%

Heavy and Civil Engineering Construction

0.7%

0.2%

Specialty Trade Contractors

0.5%

-0.1%

Food and Kindred Products

1.8%

0.2%

Beverage and Tobacco Product Manufacturing

0.5%

0.1%

313

Textile Mills

0.1%

-0.2%

315

Apparel Manufacturing

0.1%

0.0%

Leather and Allied Product Manufacturing

0.1%

Wood Product Manufacturing

0.2%

0.0%

Paper Manufacturing

0.7%

-0.6%

Printing and Related Support Actitivies

0.2%

-0.6%

Petroleum and Coal Products Manufacturing

0.4%

-0.1%

325

Chemical Manufacturing

4.5%

-1.7%

326

Plastics and Rubber Manfuacturing

1.0%

-1.5%

Nonmetallic Mineral Product Manufacturing

1.0%

0.2%

Not Available

2.4%

Animal Production

Oil and Gas Extraction

212

000 13

112

211

236

237

238

311

312

316

321

322

323

324

327

TABLE XI

FISCAL YEAR 2008

INDUSTRY GROUP OF ACQUIRED ENTITIES

3 DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

CHANGE

PERCENT

FROM FY

OF TOTAL

2007

CLEARANCE

GRANTED TO FTC

OR DOJ

NUMBER OF

3 DIGIT

SECOND REQUEST 3

INTRAINVESTIGATIONS

INDUSTRY

TRANSACTIONS 14

FTC

DOJ TOTAL

FTC

DOJ

TOTAL

0.0%

1.6%

-0.3%

2.6%

0.4%

Computer and Electronic Product Manufacturing

3.0%

-0.6%

Electrical Equipment, Applicance, and Component

Manufacturing

Transportation Equipment Manufacturing

0.7%

-0.1%

1.3%

-1.1%

Furniture and Related Product Manufacturing

0.2%

-0.1%

Miscellaneous Manufacturing

1.3%

-0.6%

Merchant Wholesalers, Durable Goods

5.1%

-1.3%

Merchant Wholesales, Nondurable Goods

3.5%

-0.4%

Wholesale Electric Markets and Agent and Brokers

0.1%

441

Motor Vehicle and Parts Dealers

0.2%

-0.7%

444

Electronics and Appliance Stores

0.2%

Food and Beverage Stores

0.3%

-0.1%

Health and Personal Care Stores

0.4%

0.2%

Gasoline Stations

0.2%

-0.3%

Clothing and Clothing Accessories Stores

0.1%

-0.8%

Sporting Goods, Hobby, Book, and Music Stores

0.1%

-0.2%

452

General Merchandise Stores

0.1%

-0.2%

453

Miscellaneous Store Retailers

0.1%

-0.2%

Nonstore Retailers

0.4%

-0.4%

Primary Metal Manufacturing

1.6%

Fabricated Metal Product Manufacturing

Machinery Manufacturing

334

335

331

332

333

336

337

339

423

424

425

445

446

447

448

451

454

TABLE XI

FISCAL YEAR 2008

INDUSTRY GROUP OF ACQUIRED ENTITIES

3 DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

CHANGE

PERCENT

FROM FY

OF TOTAL

2007

CLEARANCE

GRANTED TO FTC

OR DOJ

NUMBER OF

3 DIGIT

SECOND REQUEST 3

INTRAINVESTIGATIONS

INDUSTRY

TRANSACTIONS 14

FTC

DOJ TOTAL

FTC

DOJ

TOTAL

0.0%

0.5%

0.0%

0.1%

-0.4%

Transit and Ground Transportation

0.1%

0.0%

486

Pipeline Transportation

0.4%

0.0%

488

Support Actitivies for Transportation

0.5%

-0.7%

Warehousing and Storage

0.2%

0.0%

Publishing Industries (except Internet)

3.7%

-1.7%

Motion Pictures and Sound Recording Industries

0.4%

-0.5%

Broadcasting (except Internet)

0.8%

-0.2%

Internet Publishing and Broadcasting

0.7%

0.2%

517

Telecommunications

1.6%

-1.5%

518

Internet Service Providers, Web Search Portals, and Data

Processing Services

Other Information Services

1.0%

-1.4%

0.2%

Credit Intermediation and Related Activities

2.2%

-0.8%

Securitites, Commodity Contracts, and Other Financial

Investments and Related Activities

Insurance Carriers and Related Actitivities

2.8%

0.1%

3.3%

0.1%

Real Estate

0.5%

-0.2%

532

Rental and Leasing Services

0.8%

-0.4%

533

Lessors of Nonfinancial Intangible Assets (except Copyrighted

Works)

Professional, Scientific, and Technical Services

0.7%

-0.3%

5.9%

0.0%

Air Transportation

0.4%

Water Transportation

Truck Transportation

485

481

483

484

493

511

512

515

516

519

522

523

524

531

541

TABLE XI

FISCAL YEAR 2008

INDUSTRY GROUP OF ACQUIRED ENTITIES

3 DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

CHANGE

PERCENT

FROM FY

OF TOTAL

2007

CLEARANCE

GRANTED TO FTC

OR DOJ

NUMBER OF

3 DIGIT

SECOND REQUEST 3

INTRAINVESTIGATIONS

INDUSTRY

TRANSACTIONS 14

FTC

DOJ TOTAL

FTC

DOJ

TOTAL

0.5%

0.6%

0.1%

0.4%

0.0%

Ambulatory Health Care Services

1.1%

-0.3%

622

Hospitals

1.2%

0.8%

623

Nursing Care Facilities

0.1%

-0.5%

Social Assistance

0.3%

Performing Arts, Spector Sports, and Related Industries

0.3%

-0.2%

Amusement, Gambling, and Recreation Industries

0.2%

0.0%

Accommodation

0.2%

-0.3%

Food Services and Drinking Places

0.4%

-0.3%

811

Repairt and Maintenance

0.1%

-0.3%

812

Personal and Laundry Services

0.4%

0.3%

Nonclassificable Establishments

354

21.4%

1,656

100.0%

197

293

651

Administrative and Support Services

1.9%

Waste Management and Remediation Services

Educational Services

621

561

562

611

624

711

713

721

722

999

1 Fiscal year 2008 figures include transactions reported between October 1, 2007 and September 30, 2008.

2 The size of transaction is based on the aggregate total amount of voting securities, non-corporate interests and/or assets held by the acquiring person as a result of the transaction

and are taken from the response to Item 3 (b)(ii) and 3 (c) of the Notification and Report Form.

3 These statistics are based on the date the Second Request was issued.

4 During fiscal year 2008, 1,726 transactions were reported under the HSR Premerger Notification program. The smaller number 1,656 reflects the adjustments to eliminate the

following types of transactions: (1) transactions reported under Section 7A(c)(6) and (c)(8) (transactions involving certain regulated industries and financial businesses); (2)

transactions deemed non-reportable; (3) incomplete transactions (only one party in each transaction filed a compliant notification); and (4) transactions withdrawn before the

waiting period began. The table does not, however, exclude competing offers or multiple HSR transactions resulting from a single business transaction (where there are multiple

acquiring persons or acquired persons).

5 The total number of filings under $50M (as adjusted) submitted in Fiscal Year 2008 is corrective filings.

6 In February 2001, legislation raised the size of transaction from $15 million to $50 million with annual adjustments beginning in February 2005.

7 The category labeled “Sales Not Available” includes newly-formed acquiring persons, foreign acquiring person with no United States revenues, and acquiring persons who had

not derived any revenues from their investments at the time of filing.

8 Assets of an acquired entity are not available when the acquired entity’s financial data is consolidated within its ultimate parent.

9 Sales an acquired entity are taken from responses to Item 4(a) and (b) (SEC documents and annual reports) or item 5 (dollar revenues) of the Premerger Notification and Report

Form.

10 This category includes acquisition of newly-formed entities from which no sales were generated, and acquisitions of assets which produced no sales revenues during the prior

year to filing the Notification and Report Form.

11 The 3-digit codes are part of the North American Industrial Classification System (NAICS) established by the United States Government North American Industrial

Classification System 1997, Executive Office of the President, Office of Management and Budget. The NAICS groups used in this table were determined from responses submitted

by the parties to Item 5 of the Premerger Notification and Report Form.

12 This represents the deviation from the fiscal year 2007 percentage.

13 This category includes transactions by newly-formed entities.

14 The intra-industry transactions column identifies the number of acquisitions in which both the acquiring and acquired person derived revenues from the same 3-digit NAICS

code.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.