# Federal Trade Commission (2003)

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URL: https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A1cd72dc2cad1c635

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

Federal Trade Commission
Bureau of Competition
Joseph J. Simons, Director

Antitrust Enforcement Activities
Fiscal Year 1999 - March 15, 2003
ABA Antitrust Section Spring Meeting 2003

ABA ANTITRUST SECTION
SPRING MEETING
Summary of Bureau of Competition Activity
Fiscal Year 1999 Through March 15, 2003
Table of Contents
I.

Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A.
Consent Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Agrium, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Airgas, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Albertson’s, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AmericaOnline, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Amgen Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Associated Octel Company Limited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Baxter International, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Bayer AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Boeing Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
BP Amoco p.l.c. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Ceridian Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Chevron Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Computer Sciences Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dainippon Ink and Chemicals, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Delhaize Freres et cie “Le Lion” S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Deutsche Gelatine-Fabriken Stoess AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Diageo plc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dominion Resources, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Dow Chemical Company, The . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Duke Energy Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
El Paso Energy Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
El Paso Energy Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
El Paso Energy Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exxon Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Exxon Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Federal-Mogul Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Fidelity National Financial, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
FMC Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Hoechst AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
INA-Holding Schaeffler KG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Intel Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Koch Industries, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Koninklijke Ahold NV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
i

Koninklijke Ahold NV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Kroger Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Kroger Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Lafarge Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Lafarge Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
MacDermid, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Manheim Auctions, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
MCN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Medtronic, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Medtronic, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Merck and Co, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Metso Oyj . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
MSC. Software Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Nestle Holdings, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Nortek, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Novartis AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Pfizer Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Philip Morris Companies, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Phillips Petroleum Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Precision Castparts Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Provident Companies, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Quest Diagnostics, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Quexco Incorporated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Reckitt & Colman plc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
RHI AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Rhodia, Donau Chemie AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Rohm & Haas Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Service Corporation International . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Service Corporation International . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Shaw’s Supermarkets, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Shell Oil Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Shell Oil Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Siemens AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SmithKline Beecham plc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SNIA S.p.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Solvay S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Tyco International, Ltd. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Valero Energy Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Valspar Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
VNU N.V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Wal-Mart Stores, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Winn-Dixie Stores, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Zeneca Group PLC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ii

B.

C.

D.

E.
F.

G.

H.

Authorizations to Seek Preliminary Injunctions . . . . . . . . . . . . . . . . . . . . . . 13
BP Amoco p.l.c. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Conso International Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Cytyc Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Deutsche Gelatine-Fabriken Stoess AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Diageo plc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
The Hearst Trust and The Hearst Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
H.J. Heinz Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Kroger Company, The/Raley’s Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Kroger Company/Winn-Dixie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Libby, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Meade Instruments Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Nestlé Holdings, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Swedish Match AB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Commission Opinions/Initial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Swedish Match AB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Tenet Healthcare Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Court Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
H.J. Heinz Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Swedish Match AB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Tenet Healthcare Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Order Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Boston Scientific Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Other Commission Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
H.J. Heinz Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Tenet Healthcare Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Chicago Bridge & Iron Company N.V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
H.J. Heinz Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Libby, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
MSC. Software Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Swedish Match AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Best Practices Analysis for Merger Review Process . . . . . . . . . . . . . . . . . . . . . . 18
Business-to-Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Clayton Act -- Section 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A Study of the Commission’s Divestiture Process . . . . . . . . . . . . . . . . . . . . . . . 19
Guidelines for Merger Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Merger Efficiency Roundtable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Merger Remedies - Second Workshop . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

iii

II.
A.
B.

C.
D.
E.
III.
A.

B.
C.
D.

Hart-Scott-Rodino Antitrust Improvements Act . . . . . . . . . . . . . . . . . . . . . 21
Court Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
The Hearst Trust and The Hearst Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Consent Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Blackstone Capital Partners II Merchant Banking Fund L.P. . . . . . . . . . . . . . . . 21
The Laitram Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Rules and Formal Interpretations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Limited Liability Companies – Formal Interpretation 15 . . . . . . . . . . . . . . . . . . 23
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Non-Merger Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
HORIZONTAL ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Commission Opinions/Initial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
PolyGram Music Group (The Three Tenors) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Schering-Plough Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Summit Technology and VISX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Court Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
California Dental Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Authorizations to Seek Preliminary/Permanent Injunctions . . . . . . . . . . . . . 25
Consent Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Abbott Laboratories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Alaska Healthcare Network . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
American Home Products Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
American Institute for Conservation of Historic and Artistic Works . . . . . . . . . 26
Asociacion de Farmacias Region de Arecibo . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Aurora Associated Primary Care Physicians, L.L.C. . . . . . . . . . . . . . . . . . . . . . . 26
Bertlesmann Music Group, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Biovail Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Biovail Corporation and Elan Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Bristol-Myers Squibb Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Capitol Records, Inc. dba “EMI Music Distribution” . . . . . . . . . . . . . . . . . . . . . 27
Chrysler Dealers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Colegio de Cirujanos Dentistas de Puerto Rico . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Columbia River Pilots . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Dentists of Juana Diaz, Cuamo and Santa Isabel, Puerto Rico . . . . . . . . . . . . . . 28
FMC Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Geneva Pharmaceuticals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Hoechst Marion Roussel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Mesa County Physicians IPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Michael T. Berkley, D.C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Mark A. Cassellius, D.C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
National Academy of Arbitrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
iv

E.

F.

Nine West Group Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
North Lake Tahoe Medical Group, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Obstetrics & Gynecology Medical Corporation of Napa Valley . . . . . . . . . . . . . 29
Professional Integrated Services of Denver, Inc., Michael J. Guese, M.D., and
Marcia A. Brauchler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Sensormatic Electronics Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Professionals in Women’s Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Sony Music Entertainment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
South Lake Tahoe Lodging Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Southern Valley Pool Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Summit Technology, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
System Health Providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Texas Surgeons, P.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Time Warner, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Universal Music and Video Distribution Corporation . . . . . . . . . . . . . . . . . . . . . 31
UMG Recordings, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Warner Communications Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Wisconsin Chiropractic Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Hoechst Marion Roussel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
PolyGram Music Group (The Three Tenors) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Rambus, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Schering - Plough Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Public Documents/Policy Statements/Conferences . . . . . . . . . . . . . . . . . . . . . 33
FTC Antitrust Actions in Pharmaceutical Services and Products . . . . . . . . . . . . 33
Second Public Conference on the U.S. Oil and Gasoline Industry . . . . . . . . . . . 33
Midwest Gas Price Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Commission Studies/Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Advisory Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
PriMed Physicians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
MedSouth, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Connecticut Hospital Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Harvard Vanguard Medical Associates, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Northeast Pharmacy Service Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
BJC Health System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Orange Pharmacy Equitable Network . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Wesley Health Care Center, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

v

Advocacy Filings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Workshops/Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Healthcare . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Intellectual Property and Patent Law . . . . . . . . . . . . . . . . . . . . . . . . . 37
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Anticompetitive Efforts to Restrict Competition on the Internet . . . . . . . 38
Federal Circuit Jurisprudence: Jurisdiction, Choice of Law, and
Competition Policy Perspectives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Slotting Allowances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Report on Slotting Allowances and Other Grocery Marketing Practices 38

A.
B.
C.
D.
E.
F.

VERTICAL ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Commission Opinions/Initial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Toys “R” Us . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Court Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Toys R Us . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Authorization to Seek Preliminary/Permanent Injunctions . . . . . . . . . . . . . 39
Mylan Laboratories, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Consent Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
McCormick & Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SINGLE FIRM ENFORCEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

IV.
International Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Multilateral Competition Fora . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Technical Assistance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
V.

Competition Speeches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

VI.
Statistics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Fiscal Year 2003 (through March 15, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Fiscal Year 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Fiscal Year 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Fiscal Year 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Fiscal Year 1999 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

vi

ABA ANTITRUST SECTION
SPRING MEETING
Summary of Bureau of Competition Activity
Fiscal Year 1999 Through March 15, 2003
I.

Mergers
A.

Consent Orders

Agrium, Inc. (Final Order November 13, 2000): A consent order requires Agrium to divest a
deepwater terminal near Portland, Oregon, an up water terminal in central Washington and other
assets settling charges concerning its proposed acquisition of the nitrogen fertilizer business of
Union Oil Company of California. Agrium and Unocal are the leading producers in the
Northwest of nitrogen fertilizer – anhydrous ammonia, urea and UAN 32% solution – ingredients
used for plant growth.
Airgas, Inc. (Final Order December 18, 2001): Airgas, Inc., the nation’s largest distributor of
industrial, medical, and specialty gases, settled antitrust charges that its January 2000 acquisition
of Mallinckrodt, Inc.’s Puritan Bennett Medical Gas Business eliminated competition in the
North American market for the production and sale of nitrous oxide. Under terms of the order,
Airgas is required to divest two nitrous oxide plants and related assets to Air Liquide America
Corporation within 10 days after the Commission issues its final order. Nitrous oxide is a clear,
odorless gas used mainly in dental and surgical procedures as an analgesic agent or as a
supplement to anesthesia.
Albertson’s, Inc. (Final Order December 8, 2000): The final order, modified after the public
comment period, does not require the divestiture of a Lucky (American Stores Company) store in
Lompoc, California to Ralph’s. Albertson’s Inc. agreed to divest 104 supermarkets and American
Stores Company agreed to divest 40 supermarkets to settle charges that Albertson’s acquisition
of American Stores raised antitrust concerns in 57 markets in California, Nevada and New
Mexico. The divestiture agreement is the largest retail divestiture of supermarkets ever required
by the Commission.
AmericaOnline, Inc. (Final Order April 17, 2001): AOL and Time Warner Inc. settled
Commission concerns relating to their proposed merger. The order requires AOL Time Warner
1

to open its cable system to competitor internet service providers. In addition, the company is
prohibited from interfering with content passed along the bandwidth contracted for by nonaffiliated internet service providers; and prohibited from interfering with the ability of nonaffiliated providers of interactive television services to interact with interactive signals that AOL
Time Warner agreed to carry.
Amgen Inc. (Final Order September 3, 2002): Amgen settled antitrust charges that its proposed
$16 billion acquisition of Immunex Corporation would reduce competition and tend to create a
monopoly in the biopharmaceutical markets for neutrophil (white blood cell) regeneration
factors; tumor necrosis factor (TNF) inhibitors; and interleukin-1 (IL-1) inhibitors. The consent
order requires the firms to sell all of Immunex’s assets related to Leukine - a neutrophil
regeneration factor - to Schering AG; license certain intellectual property rights to TNF inhibitors
to Serono S.A.; and license certain intellectual property rights related to IL-1 inhibitors to
Regeneron Pharmaceuticals Inc.
Associated Octel Company Limited (Final Order December 22, 1999): Associated Octel
settled charges that its acquisition of Oboadler Company would eliminate direct competition and
raise prices in the highly concentrated market for the manufacture and sale of lead antiknock
compounds. Under terms of the order, Octel agreed to supply Oboadler’s current distributor,
Allchem Industries, Inc., with lead antiknock compounds for resale in the United States for 15
years.
Baxter International, Inc. (Final Order February 3, 2003): Baxter settled Commission
concerns stemming from its $316 million proposed acquisition of Wyeth Corporation’s generic
injectable drug business and agreed to divest several pharmaceutical products. The Commission
charged that the acquisition would reduce competition in the manufacture and sale of propofol (a
general anesthetic); new injectable iron replacement therapies; metoclopramide (used to treat
nausea); and vecuronium and pancuronium (neuromuscular blocking agents used to temporarily
freeze muscles during surgery). The consent order requires divestitures in each of the
pharmaceutical markets.
Bayer AG (Final Order August 2, 2002): A consent order permits Bayer to purchase Aventis
CropScience Holdings S.A. from Aventis S.A. The order requires Bayer to divest businesses and
assets in the following four major markets: new generation chemical insecticide products; new
generation chemical insecticide active ingredients; post-emergent grass herbicides for spring
wheat; and cool weather cotton defoliants. According to the complaint, the transaction as
proposed would result in the elimination of both actual and potential competition in the four
markets; increase barriers to entry; reduce innovation competition for certain products; and
increase the possibility of coordinated interaction between competitors.
The Boeing Company (Final Order January 5, 2001): The consent order permits the
acquisition of Hughes Space and Communications, a subsidiary of General Motors Corporation,
but prohibits Boeing from providing systems engineering and technical assistance (SETA) to the
2

U.S. Department of Defense for a specific classified program. According to the complaint,
Boeing is the sole supplier of SETA programs and Hughes is one of two competing contractors.
BP Am oco p.l.c. (Final Order August 29, 2000): BP Amoco settled charges that its acquisition
of Atlantic Richfield Company (ARCO) would lessen competition in the production and sale of
crude oil in several United States markets. The order requires BP to divest ARCO’s complete
free standing businesses relating to oil production on Alaska’s North Slope to Philips Petroleum
Company within 30 days.
Ceridian Corporation (Final Order April 6, 2000): A consent order requires Ceridian to grant
licenses to new and existing firms that provide commercial credit cards (known as “trucking
fleet-cards”) used by over-the-road trucking companies to make purchases at retail locations.
The order settles charges that Ceridian’s consummated acquisitions of NTS Corporation and
Trendar Corporation gave Ceridian the power to control the markets for the provision of
trucking fleet cards and the systems used to read them at truck stops throughout the country.
Chevron Corporation (Final Order January 4, 2002): A consent order permitted the $45
billion merger of Chevron and Texaco Inc., but required significant divestitures in the petroleum
industry.
Computer Sciences Corporation (Final Order January 26, 2000): Final consent order
permitted the acquisition of Mynd Corporation and required the divestiture of Mynd’s Claims
Outcome Advisor System to Insurance Services Office, Inc. Claims assessment systems are used
by insurance companies to evaluate appropriate payments for claims of bodily injury and to
evaluate return-to-work plans in workers compensation matters.
Dainippon Ink and Chemicals, Inc. (Final Order March 13, 2003): Dainippon agreed to
divest the perylene business of its U.S. subsidiary, Sun Chemical Corporation, to Ciba Specialty
Chemicals Inc. and Ciba Specialty Chemicals Corporation to settle allegations that its proposed
acquisition of Bayer Corporation’s high-performance pigment manufacturing facility would
eliminate competition in the highly concentrated world market for perylenes – organic pigments
used to impart unique shades of red color to products, including coatings, plastics and fibers.
Delhaize Freres et cie “Le Lion” S.A. (Final Order May 30, 2001): The consent order
permitted the merger of Establissements Delhaize Freres et Cie “Le Lion” S.A. and Delhaize
America, Inc. with Hannaford Bros. Co. and required the sale of 37 Hannaford supermarkets and
one Hannaford site to three different buyers.
Deutsche Gelatine-Fabriken Stoess AG (Final Order April 17, 2002): A consent order
allowed DGF to complete its $170 million acquisition of Leiner Davis Gelatin Corporation and
its Goodman Fielder USA, Inc. subsidiary under terms that the entire pigskin and beef hide
gelatin business of Goodman Fielder would be excluded from the transaction. The complaint
issued with the order alleged that if the firms were allowed to consummate the transaction, as
3

originally proposed, they would account for more than 50 percent of the U.S. market for these
gelatin products used by the food industry as an ingredient in edible products and by the
pharmaceutical industry to produce capsules and tablets. The consent order requiring the
restructured transaction was negotiated after the Commission authorized staff to seek a
preliminary injunction in federal district court to block the parties from consummating the
transaction.
Diageo plc (Final Order December 19, 2001): Diageo and Vivendi Universal S.A. resolved
antitrust concerns regarding Diageo’s and Pernod Ricard S.A.’s joint acquisition of Vivendi’s
Seagram Spirits and Wine Business that would combine the second- and third- largest rum
producers in the United States. The consent order, among other things, required Diageo to divest
the Malibu rum business worldwide to a Commission-approved buyer within six months of the
acquisition of Seagram. On October 23, 2001, the Commission authorized staff to seek a
preliminary injunction in federal district court to block the transaction.
Dominion Resources, Inc. (Final Order December 14, 1999): A consent order permits
Dominion’s acquisition of Consolidated Natural Gas Company but requires the divestiture of
Consolidate’s Virginia Natural Gas, Inc. The complaint alleged that the merger would combine
the dominant provider of electric power in Virginia with the primary distributor of natural gas in
southeastern Virginia.
Dow Chemical Company, The (Final Order March 15, 2001): Dow settled antitrust concerns
relating to its proposed merger with Union Carbide Corporation. Dow agreed to divest and
license intellectual property necessary to the production of linear low-density polyethylene - an
ingredient used in premium plastic products such as trash bags and sealable food pouches - to
BP Amoco plc.
Duke Energy Corporation (Final Order May 9, 2000): Duke agreed to divest 2,780 miles of
gas gathering pipeline in Kansas, Oklahoma and Texas to settle antitrust concerns stemming
from Duke’s and Phillips Petroleum Company’s proposed merger of their natural gas gathering
and processing businesses; and it’s proposed acquisition of gas gathering assets in central
Oklahoma from Conoco Inc. and Mitchell Energy and Development Corporation The new
company will be known as Duke Energy Field Services, L.L.C.
El Paso Energy Corporation (Final Order January 30, 2001): A final order allowed El Paso
Energy Corporation to acquire PG&E Gas Transmission Teco, Inc. and PG&E Gas Transmission
Texas Company (subsidiaries of Pacific Gas & Electric) with the provision that it divest its
interest in the Oasis Pipe Line Company; PG&E’s share of the Teco Pipeline; and the Matagorda
Island Offshore production area. The divestitures ensure that competition is maintained for
natural gas transportation in three Texas markets.
El Paso Energy Corporation (Final Order March 19, 2001): A modified consent order allows
the merger of El Paso and Coastal Corporation and requires the divestiture of more than 2,500
4

miles of gas pipeline system in Florida, New York and the Midwest. The modifications relate to
the establishment of the Development Fund for the Green Canyon/Tarpon pipeline acquirer and
is described in the final order.
El Paso Energy Corporation (Final Order January 6, 2000): A final order ensures
competition in the markets for natural gas transportation out of the Gulf of Mexico and into the
southeastern United States. The consent order permitted El Paso’s $6 billion merger with Sonat
Inc. and requires the divestiture of Sea Robin Pipeline Company; Sonat’s one-third ownership
interest in Destin Pipeline Company, L.L.C.; and, the East Tennessee Natural Gas Company.
Exxon Corporation (Final Order October 30, 1998): Exxon will divest its viscosity index
improver business to Chevron Chemical Company LLC to settle allegations that its proposed
joint venture with Royal Dutch Shell to develop, manufacture and sell their fuel and lubricants
additives would reduce competition and lead to collusion among the remaining firms in the
market.
Exxon Corporation (Final Order January 30, 2001): A consent order settled antitrust concerns
stemming from Exxon’s proposed acquisition of Mobil Corporation, and required the largest
retail divestiture in Commission history. The divestitures, representing only a fraction of the
worldwide assets of Exxon and Mobil, include 2,431 gas stations; an Exxon refinery in
California; a pipeline; and other assets. According to the complaint, the proposed merger would
injure competition in moderate concentrated markets – California gasoline refining; marketing
and retail sales of gasoline in the Northeast, Mid-Atlantic, and in the State of Texas; and in the
highly concentrated markets for jet turbine oil.
Federal-Mogul Corporation (Final Order December 4, 1998): Federal-Mogul agreed to
divest the thinwall bearings assets (Glacier Vandervell Bearings Group) it acquires in its takeover
of T&N plc to a Commission-approved buyer. The complaint alleged that the acquisition would
increase the likelihood of coordinated anticompetitive conduct between Federal-Mogul and the
remaining competitors in the market for thinwall engine bearings used to separate component
parts in the engines of cars, trucks and heavy equipment.
Fidelity National Financial, Inc. (Final Order February 17, 2000): A consent order settled
charges that Fidelity’s acquisition of Chicago Title Corporation would reduce competition for
title information services in San Luis Obispo, Tehama, Napa, Merced, Yolo, and San Benito,
California. The order requires the divestiture of title plants in each of the six areas.
FMC Corporation (Final Order May 19, 2000): The consent order requires FMC to divest its
phosphorus pentasulfide business in Lawrence, Kansas to Peak Investments, LLC and Solutia
Inc.’s phosphate assets in Augusta, Georgia to Societe Chimique Prayon-Rupel to settle charges
that the proposed FMC/Solutia joint venture could substantially lessen competition in the United
States market for pure phosphoric acid and phosphorus pentasulfide.

5

Hoechst AG (Final Order January 18, 2000): A consent order settled charges stemming from
Hoechst’s merger with Rhone-Poulenc S.A. According to the complaint, the merger (the merged
firm would be renamed Aventis S.A.) raised antitrust concerns in the market for cellulose acetate
and direct thrombin acetate. The order requires the divestiture of the subsidiary, Rhodia, a
specialty chemicals firm that produces cellulose acetate.
INA-Holding Schaeffler KG (Final Order February 15, 2002): The consent order permits
INA’s acquisition of FAG Kugelfischer Georg Schafer AG but requires the divestiture of FAG’s
cartridge ball screw support bearing business to Aktiebolaget SKF within 20 business days after
the consummation of the INA/FAG transaction. According to the complaint issued with the
consent order, the acquisition, as planned, would create a monopoly in the market worldwide.
Intel Corporation (Final Order July 20, 1998): A consent order settled allegations that Intel’s
acquisition of Digital Equipment Corporation’s assets could endanger the continuing and future
development of the Alpha microprocessor, a direct competitor of Intel’s Pentium line of
computer system components. The order required Digital to license the Alpha technology to
Advanced Micro Devices and to Samsung Electronics Co., Ltd. or to other Commissionapproved companies to manufacture Digital’s microprocessor devices.
Koch Industries, Inc. (Final Order January 31, 2001): A consent order settles allegations that
Entergy-Koch LP’s (a limited partnership owned equally by Entergy Corporation and Koch)
acquisition of 50 percent of the Gulf South Pipeline Company, LP from Koch would lessen
competition for the sale of electricity to consumers in Louisiana and western Mississippi and the
distribution of natural gas to consumers in New Orleans and Baton Rouge. Entergy is the
regulated electric and natural gas utility in parts of Louisiana and Mississippi. The order requires
Entergy to establish a transparent process to buy natural gas and natural gas transportation that
will assist state regulators in determining whether Entergy purchased gas supplies at inflated
prices from its Entergy-Koch partnership.
Koninklijke Ahold NV (Final Order April 14, 1999): The consent order requires divestiture
of 10 supermarkets in Maryland and Pennsylvania to settle antitrust concerns stemming from
Ahold’s acquisition of Giant Food Inc.
Koninklijke Ahold NV (Final Order December 7, 2001): Ahold would be permitted to acquire
Bruno’s Supermarkets, Inc. under terms of a consent order, but would be required to divest two
BI-LO supermarkets in Georgia - one Milledgeville, and one in Sandersville. The Commission’s
complaint charged that the acquisition as originally proposed would reduce competition in the
retail sale of food and grocery items in supermarkets in the area and would eliminate direct
competition between supermarkets owned and controlled by Ahold and those owned or
controlled by Bruno’s.
Kroger Company (Final Order January 10, 2000): Final order requires Kroger and Fred Meyer
Stores, Inc. to divest eight supermarkets to settle charges that the acquisition of Fred Meyer
6

would increase concentration and decrease competition in Arizona, Wyoming, and Utah. Under
terms of the order, two Smith’s Food & Drug Centers will be sold to Nash-Finch Company; one
“City Market” will be sold to Albertson’s Inc.; and five supermarkets (two “City Markets”; two
Fry’s, and one Smith’s) will be sold to Fleming Companies, Inc.
Kroger Company (Final Order November 8, 1999): A final order settled charges stemming
from Kroger Company’s acquisition of The John C. Groub Company. The order requires the
divestiture of three supermarkets in Columbus and Madison, Indiana to Roundy’s, Inc., one of
the largest food wholesalers in the United States.
Lafarge Corporation (Final Order August 8, 2001): The consent order required the divestiture
of Blue Circle Industries PLC’s cement business serving the Great Lakes region of Ohio,
Michigan, Illinois, Wisconsin and New York; its cement business in the Syracuse, New York;
and its lime business in the southeast United States. These divestitures settled antitrust concerns
stemming from Lafarge’s proposed merger with Blue Circle. The two firms are market leaders in
the industry for cement and lime.
Lafarge Corporation (Final Order February 12, 1999): As a result of plans to acquire
Holnam, Inc.’s Seattle cement plant and other cement assets in Washington State, Lafarge
entered into an illegal agreement that would reduce competition by restricting its cement
distribution in the Puget Sound area. The consent order requires LaFarge to restructure the sales
agreement with Holnam to delete the production penalty clause.
MacDermid, Inc. (Final Order February 3, 2000): A consent order permits MacDermid’s
acquisition of Polyfibron Technologies, Inc. and requires the divestiture, among other things, of
Polyfibron’s liquid photopolymer business to Chemence Inc. According to the complaint, the
acquisition would result in a monopoly in the production, distribution and sale of liquid and solid
photopolymer in North America. Photopolymers are used to make flexographic printing plates.
Manheim Auctions, Inc. (Final Order November 13, 2000): The consent order settles
antitrust concerns stemming from the acquisition of ADT Automotive Holdings, Inc., the nation’s
third largest operator of wholesale motor vehicle auctions. The order requires Manheim to divest
nine auctions in Kansas City, Missouri; Denver and Colorado Springs, Colorado; Atlanta,
Georgia; San Francisco, California; Seattle, Washington; Tampa, Orlando and Daytona Beach,
Florida; and Phoenix, Arizona.
MCN (Final Order May 15, 2001): A final order permitted the $4 billion merger of MCN, a
natural gas utility servicing communities in Michigan, and DTE, a public utility engaged in the
generation and sale of electricity in Detroit and southeastern Michigan. The consent order,
designed to resolve Commission concerns that the merger would lessen competition in the local
distribution of electricity and in the local distribution of natural gas in the city of Detroit and in
the Michigan counties of Macomb, Monroe, Oakland, Washtenaw and Wayne. MCN is the
parent of Michigan Consolidated Gas Company and DTE is the parent holding company of The
7

Detroit Edison Company.
Medtronic, Inc. (Final Order December 21, 1998): A consent order settles allegations
stemming from Medtronic’s proposed acquisition of Physio-Control International Corporation’s
automatic external defibrillator business. According to the complaint, Medtronic, through its
controlling interest in SurVivaLink Corporation, a direct competitor of Physio-Control, would
control both companies as a result of the acquisition and thereby increase the likelihood of
coordinated interaction which could result in increased prices and reduce innovation in the
market. The consent order requires Medtronic to become a passive investor in SurVivaLink and
reduce many of its present and future business contacts with the firm.
Medtronic, Inc. (Final Order June 3, 1999): Medtronic agreed to divest Avecor
Cardiovascular, Inc.’s non-occlusive arterial pump assets to settle antitrust concerns that the
acquisition would lessen competition for the research, development, manufacture and sale of the
pumps in the United States. The consent order requires Medtronic to provide assistance to the
buyer of the Avecor Pump assets to enable the buyer to obtain FDA approval to manufacture and
market the Avecor pumps an reservoirs.
Merck and Co, Inc. (Final Order February 18, 1999): The complaint, issued with the consent
order, alleged that as a result of Merck’s 1993 acquisition of Medco, the nation’s largest benefits
manager, Merck’s drugs received favorable treatment through Medco’s drug-list formulary made
available to medical professionals who prescribe and dispense prescriptions to health plan
beneficiaries. The consent order requires Medco, among other things, to maintain an “open
formulary” to include drugs approved by an independent Pharmacy and Therapeutics Committee,
staffed by physicians and pharmacologists who have no financial interest in Merck.
Metso Oyj (Final Order October 23, 2001): Metso settled charges that if its acquisition of
Svedala Industri AB were allowed to proceed as planned, competition would be lessened in four
rock processing equipment markets: primary gyratory crushers; jaw crushers; cone crushers; and
grinding mills. The firms agreed to divest Metso’s worldwide primary gyratory crusher and
grinding mill businesses and Svedala’s worldwide jaw crusher and cone crusher businesses. The
three crusher businesses would be purchased by Sandvik AB, a Swedish corporation; the
grinding mill business would be purchased by Outokumpu of Finland. Metso and Svedala are
the two largest suppliers of rock processing equipment in the world.
MSC. Software Corporation (Final Order August 14, 2002): MSC settled charges that its
1999 acquisitions of Universal Analytics, Inc. and Computerized Structural Analysis & Research
Corp. eliminated competition between the three firms in the development and application of
engineering software. The administrative complaint issued October 2000, alleged that the two
acquisitions would eliminate competition for advanced versions of Nastran, an engineering
simulation software program used throughout the aerospace and automotive industries. The
consent order required MSC to divest at least one clone copy of its current advance Nastran
through royalty-free perpetual, non-exclusive licenses to one or two acquirers approved by the
8

Commission.
Nestle Holdings, Inc. (Final Order February 8, 2002): Nestle settled antitrust charges that its
$10.3 billion proposed acquisition of Ralston Purina Company would substantially lessen
competition in the United States market for dry cat food through the elimination of direct
competition between the two firms and increase the likelihood that the combined firm could
unilaterally exercise market power. The order requires the divestiture of Ralston’s Meow Mix
and Alley Cat brands to J.W. Childs Equity Partners II, L.P.
Nortek, Inc. (Final Order October 8, 1998): The consent order permits Nortek’s acquisition of
NuTone, Inc., its closest competitor, but requires its divestiture of M&S, the second largest seller
of hard-wired residential intercoms in the United States.
Novartis AG (Final Order December 19, 2000): The consent order permits the merger of
Novartis and AstraZeneca PLC into a new Swiss company, Syngenta AG. The order requires
Novartis to divest its worldwide foliar fungicide business (based on the strobilurin chemical
class) to Bayer Ag; and requires AstraZeneca to divest its worldwide corn herbicide business
(based on the active ingredient acetochlor) to Dow AgroSciences LLC.
Pfizer Inc. (Final Order July 28, 2000): Final consent order permits Pfizer’s merger with
Warner-Lambert Company and requires divestitures in several pharmaceutical markets including:
Pfizer’s RID brand of head lice treatment; Pfizer’s antidepressant drug, Celexa; Warner’s
Cognex, a drug used in the treatment of Alzheimer’s disease; and assets relating to the Epidermal
Growth Factor receptor tryosine kinase inhibitor - drugs under development to treat solid
cancerous tumors such as head and neck, non-small cell lung, breast, ovarian, pancreas and
colorectal cancers.
Philip Morris Companies, Inc. (Final Order February 27, 2001): The consent order permits
the merger of Philip Morris and Nabisco Holdings Corporation while settling charges that the
merger of the two food companies would reduce competition in the already highly-concentrated
food product markets. Under terms of the order, the parties are required to divest Nabisco’s drymix gelatin, dry-mix pudding, no-bake dessert, and baking powder assets to The Jel Sert
Company and Nabisco’s intense mints assets to Hershey Foods Corporation.
Phillips Petroleum Com pany (Final Order February 7, 2003): A final consent order allows
the merger of Phillips Petroleum and Conoco Inc. but requires certain divestitures and other
relief to maintain competition in the gasoline refining market in specific areas of the United
States. Among the assets to be divested are refineries, propane terminals, and natural gas
gathering facilities. The combined firm will be known as ConocoPhillips.
Precision Castparts Corporation (Final Order December 21, 1999): A final order requires
the divestiture of large titanium stainless steel and large nickel-based superalloy production
assets (structural cast metals used in the manufacture of aerospace components) to settle antitrust
9

concerns stemming from its acquisition of Wyman-Gordon Company. The order requires
Precision Castparts to divest Wyman-Gordon’s titanium foundry in Albany, Oregon and WymanGordon’s Large Cast Parts foundry in Groton, Connecticut.
Provident Companies, Inc. (Final Order September 20, 1999): The consent order ensures that
the merged firm of Provident and UNUM Corporation will continue to participate in industrywide solicitations for data to make actuarial predictions on probable future claims by applicants
who hold policies with providers of individual disability insurance. The order requires
Provident/UNUM to provide data to the Society of Actuaries and/or the National Association of
Insurance Commissioners for studies and reports.
Quest Diagnostics, Inc. (Proposed Consent Agreement Accepted for Public Comment
February 21, 2003): Quest Diagnostics agreed to divest clinical laboratory testing assets in
Northern California to Laboratory Corporation of America to settle antitrust concerns that the
proposed acquisition of Unilab Corporation would have substantially increased concentration in
the clinical laboratory testing services market.
Quexco Incorporated (Proposed Consent Agreement Accepted for Public Comment May 10,
1999; Parties Abandoned Transaction): Proposed agreement would have permitted the
acquisition of Pacific Dunlop GNB Corporation and required the divestiture of GNB’s secondary
smelter to Gopher resources, Inc. The parties abandoned the transaction during the 60-day public
comment period.
Reckitt & Colman plc (Final Order January 18, 2000): A final order permits Reckitt &
Colman to acquire Benckiser N.V. from NRV Vermogenswerwaltung GmbH but requires the
divestiture of Benckiser’s Scrub Free® and Delicare® business to Church & Dwight, Inc.,
producers of household cleaning products.
RHI AG (Final Order March 21, 2001): A consent order permits the acquisition of Global
Industrial Technologies, Inc. and requires the divestiture of two refractories manufacturing
facilities – Global’s Hammond, Indiana and Marelan, Quebec plants – to Resco Products, Inc.
According to the complaint, the proposed acquisition would create the largest producer of
refractories in North America with dominant positions in the magnesia - carbon brick refractory
market and in the high alumina brick refractory market. Refractories are used to line furnaces in
many industries that involve the heating or containment of solids, liquids, or gases at high
temperatures.
Rhodia, Donau Chemie AG (Final Order April 21, 2000): Rhodia divested certain assets to
resolve antitrust concerns stemming from its acquisition of Allbright & Wilson PLC. The
consent order permits the acquisition but requires the divestiture of Albright’s interest in its
United States phosphoric acid joint venture to its joint venture partner, Potash Corporation of
Saskatchewan.

10

Rohm & Haas Company (Final Order July 13, 1999): Rohm & Haas settled charges that its
acquisition of Morton International, Inc. would lessen competition in North American for the
production and sale of water-based floor care polymers used in the formulation of floor care
products such as polishes. The consent order requires the divestiture of Morton’s worldwide
water-based floor care polymers business to GenCorp, Inc.
Service Corporation International (Final Order June 29, 2000): Service Corporation
International divested the LaGrone Funeral Home, acquired in 1994, to settle charges that the
acquisition gave Service Corporation a monopoly in the provision of funeral services in Roswell,
New Mexico. The order also requires Service Corporation, for ten years, to obtain prior
Commission approval before acquiring any funeral home serving Chaves County, New Mexico.
Service Corporation International (Final Order May 4, 1999): Consent order permits the
acquisition of Equity Corporation International, the fourth largest funeral home and cemetery
company in the United States, and requires SCI to divest funeral service and cemetery properties
in 14 markets to Carriage Services, Inc. to remedy the anticompetitive effects of the acquisition.
Shaw’s Supermarkets, Inc. (Final Order April 5, 2000): A consent order settled charges that
Shaw’s proposed acquisition of Star Markets, Inc. could eliminate supermarket competition and
increase prices in the greater Boston metropolitan area. The consent order permits the
acquisition and requires the divestiture of three Shaw supermarkets and seven Star markets in
eight communities.
Shell Oil Company (Final Order November 18, 2002): Shell Oil Company was allowed to
complete its $1.8 billion acquisition of Pennzoil-Quaker State Company but required to divest
certain assets to maintain healthy competition in the refining and marketing of Group II
paraffinic base oil in the United States and Canada. Under terms of the consent order, Shell and
Pennzoil must divest its 50 percent interest in Excel Paralubes (a base oil refinery in Westlake,
Louisiana) and freeze Pennzoil’s right to obtain additional Group II supply under a contract with
ExxonMobil at approximately current levels (up to 6,500 barrels of base oil per day).
Shell Oil Company (Final Order December 21, 1998): The consent order requires Shell Oil
and its Tejas Energy, LLC, subsidiary, to divest parts of the ANR pipeline system in Oklahoma
and Texas to settle charges that its acquisition of gas gathering assets of The Coastal
Corporation would lead to anticompetitve increases in gas gathering rates and an overall
reduction in gas drilling and production in the two states.
Siemens AG (Final Order May 18, 2001): Siemens settled charges relating to its proposed $9
billion acquisition of Atecs Mannesmann AG, a subsidiary of Vodafone. The consent order
requires, among other things, the divestiture of Vodafone’s Mannesmann Dematic Postal
Automation business to Northrop Grumman Corporation. Siemens and Vodafone, through its
Dematic subsidiary, are the two leading suppliers of postal automation systems in the world.

11

Sm ithKline Beecham plc (Final Order December 26, 2001): Under terms of a final consent
order settling charges stemming from the merger of SmithKline and Glaxo Wellcome plc, the
parties agreed to divest pharmaceutical products in six markets: antiemetics; the antibiotic,
ceftazidime; oral and intravenous antiviral drugs for the treatment of herpes; topical antiviral
drugs for the treatment of genital herpes; and over-the-counter H-2 blocker acid relief products.
SNIA S.p.A. (Final Order July 28, 1999): Final order settles charges that Sorin Biomedica
S.p.A.’s acquisition of COBE Cardiovascular, Inc. would eliminate competition in the United
states market for research, development, manufacture and sale of heart-lung machines. The order
permits the acquisition and requires the divestiture of COBE’s heart-lung machine business to
Baxter Healthcare Corporation.
Solvay S.A. (Final Order June 25, 2002): Solvay settled antitrust concerns stemming from its
proposed acquisition of Ausimont S.p.A. from Italenergia S.p.A., and agreed to divest its U.S.
polyvinylidene fluoride (PVDF) operations and its interest in Alventia LLC, a joint venture
which manufactures the main raw material for PVDF. According to the complaint, the proposed
acquisition would lessen competition in two markets: the production and sale of all grades of
PVDF; and the production and sale of melt-processible grades of PVDF.
Tyco International, Ltd. (Final Order December 5, 2000): Tyco settled antitrust concerns
relating to its acquisition of Mallinckrodt, Inc. Tyco agreed to divest its endotracheal tube
business to Hudson RCI. The consent order permitted the acquisition.
Valero Energy Corporation (Final Order February 22, 2002): The consent order permitted
Valero to complete its $6 billion merger with Ultramar Diamond Shamrock Corporation, but
required the divestiture of Ultramar’s Golden Eagle Refinery, bulk gasoline contracts, and 70
Ultramar retail service stations in Northern California to a Commission-approved acquirer.
According to the complaint, the merger as originally proposed, would have lessened competition
in two refining markets in California resulting in consumers paying more than $150 million
annually if the price of CARB gasoline increased just one cent per gallon. CARB gasoline meets
the specifications of the California Air Resources Board.
Valspar Corporation (Final Order January 26, 2001): Final order permitted Valspar’s
acquisition of Lilly Industries, Inc., but requires Valspar to divest its mirror coatings business to
Spraylet Corporation. Mirror coatings are applied to the back of a piece of glass in order to
produce a mirror.
VNU N.V. (Final Order December 7, 1999): VNU N.V. settled antitrust concerns that its
proposed acquisition of Nielsen Media Research, Inc. would restrict competition in the market
for advertising expenditure measurement services in the United States. The order requires VNU
to divest its Competitive Media Reporting division, the nations’s largest supplier in the
specialized market.

12

Wal-Mart Stores, Inc. (Final Order February 27, 2003): A consent order settled Commission
concerns that Wal-Mart’s proposed acquisition of the largest supermarket chain in Puerto Rico,
Supermercados Amigo, Inc., would eliminate competition between supercenters and club stores
owned or controlled by Wal-Mart and supermarkets owned or controlled by Amigo. While the
consent order permits the acquisition, it requires Wal-Mart to divest four Amigo supermarkets in
Cidra, Ponce, Manati, and Vega Baja, Puerto Rico to Supermercados Maximo.
Winn-Dixie Stores, Inc. (Final Order February 14, 2000): A consent order permitted WinnDixie’s acquisition of 68 supermarkets and other assets from bankrupt Jitney-Jungle Stores of
America, Inc. The order prohibits Winn-Dixie, among other things, from acquiring any interest
in four specified Jitney-Jungle supermarkets without obtaining prior Commission approval. The
sale of the 68 supermarkets was also approved by the U.S. Bankruptcy Court for the Eastern
District of Louisiana.
Zeneca Group PLC (Final Order June 7, 1999): The consent order, resolving antitrust
concerns relating to Zeneca’s merger with Astra AB, requires the divestiture of all assets relating
to levobupivacaine, a long-acting local anesthetic. The assets will be purchased by Chiroscience
Group plc, the developer of levobupivacaine.

II.

Authorizations to Seek Preliminary Injunctions

BP Am oco p.l.c. (February 2, 2000): Commission authorized staff to file a motion in federal
district court to prevent the merger of BP Amoco p.l.c. and Atlantic Richfield Company. The
complaint, filed in the U.S. District Court for the Northern District of California, San Francisco
Division on February 4, 2000, alleged that the merger would reduce competition in the
exploration and production of Alaska North Slope crude oil and its sale to West Coast refineries,
and in the market for pipeline and storage facilities in Cushing, Oklahoma. The merger would
combine: (1) the two largest producers of crude oil on the North Slope of Alaska; (2) the two
largest suppliers of Alaska North Slope crude oil to refineries in California and Washington; (3)
and the two most successful competitors in bidding for exploration leases on the North Slope.
On March 15, 2000, five days before the start of the trial, the defendants and the Commission
agreed to seek adjournment of the federal court proceedings to enter into consent negotiations.
The consent order became final August 29, 2000.
Conso International Corporation (August 2, 2000): Conso International Corporation, owner
of the Simplicity brand of home sewing patterns, abandoned its proposed acquisition of McCall
Pattern Company after the Commission filed a motion for a preliminary injunction in the United
States District Court for the Southern District of New York. The complaint charged that the
acquisition would reduce the number of United States sewing pattern designers and producers
from three to two, creating a firm with more than 75% of the domestic unit sales of domestic
home sewing patterns.

13

Cytyc Corporation (June 24, 2002): The Commission authorized staff to seek a preliminary
injunction to block the acquisition of Digene Corporation on grounds that the combination of the
two firms would reduce competition and increase consumer prices within the highly concentrated
market for primary cervical cancer screening tests, both now and in the future. The parties
abandoned the transaction before court papers could be filed.
Deutsche Gelatine-Fabriken Stoess AG (January 15, 2002): The Commission authorized
staff to seek a preliminary injunction to block DGF’s proposed acquisition of Leiner Davis
Gelatin Corporation and its Goodman Fielder USA, Inc. subsidiary. According to the
Commission this transaction, if allowed to proceed as planned, would increase the likelihood of
anticompetitive activity in the U.S. market for pigskin and beef hide gelatin, used by the food
industry as an ingredient in edible products and by the pharmaceutical industry to produce
capsules and tablets. The combination of the two firms would account for more than 50 percent
of the relevant market in the U.S. A proposed consent agreement designed to remedy the
significant antitrust concerns was accepted for public comment March 7, 2002; the consent order
was finalized April 17, 2002.
Diageo plc (October 23, 2001): The Commission authorized staff to file a motion for a
preliminary injunction to block the proposed acquisition of Vivendi Universal S.A.’s Seagram
Wine and Spirits Business on grounds that the transaction, would not only combine the secondand third-largest rum producers in the U.S. eliminating actual competition between the firms, but
could also create higher prices for consumers of rum. A consent order permitted the acquisition,
with certain conditions.
The Hearst Trust and The Hearst Corporation (April 5, 2001): Hearst and its First
DataBank subsidiary were charged with illegally acquiring a monopoly over a key type of drug
information database used by pharmacists, hospitals, health plans, and other health care
professionals through Hearst’s 1998 acquisition of it main competitor, Medi-Span. The
complaint, filed in the U.S. District Court for the District of Columbia, asked the court to either
order Hearst to create a new competitor to replace Medi-Span or forfeit its profits from the
anticompetitive price increases that followed the acquisition of its only competitor. The
complaint further alleged that the acquisition was consummated as a result of Hearst illegally
withholding documents required for the premerger antitrust review under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976. On December 18, 2001, a federal district court entered a
proposed Final Order and Stipulation requiring Hearst to pay $19 million as disgorgement of
unlawful profits and to divest Medi-Span to Facts and Comparisons. This settlement marks the
first time the Commission has sought either divestiture or disgorgement of profits in a federal
court action for a consummated merger. A separate complaint to settle allegations that The
Hearst Trust and The Hearst Corporation subsidiary, violated the reporting requirements of the
Hart-Scott-Rodino Act was filed October 11, 2001. In that settlement, Hearst paid $4 million in
civil penalties.
H.J. Heinz Company (July 7, 2000): The Commission authorized staff to file a motion for a
14

preliminary injunction in federal district court on grounds that the proposed $185 million
acquisition of Milnot Holding Company, owner of Beech-Nut Nutrition Corporation, would
reduce the number of competitors in the baby food market from three to two – creating a
duopoly. The complaint was filed in the U.S. District Court for the District of Columbia on July
14, 2000. The federal district court denied the Commission’s request for a preliminary injunction
on October 19, 2000. On April 27,2001, the U.S. District Court of Appeals for the District of
Columbia reversed the federal district court decision and remanded for entry of a preliminary
injunction against Heinz and Beech-Nut. Within minutes of the Appeals court decision, the
parties abandoned the transaction.
Kroger Company, The/Raley’s Corporation (October 2, 2002): The preliminary injunction
authorized by the Commission during the investigation into Kroger’s acquisition of 18 Raley’s
supermarkets in the Las Vegas, Nevada area was not filed. After staff determined that the
transaction would promote healthy competition in the Las Vegas/Henderson area due to the rapid
growth of the market and the presence of Wal-Mart, Albertson’s, Kroger and Safeway - the four
major competitors in the area, the investigation was closed.
Kroger Company/Winn-Dixie (June 2, 2000): The Commission authorized staff to file a
motion in federal district court to block the proposed acquisition of 74 Winn-Dixie supermarkets
in Texas and Oklahoma. The complaint, filed in the U.S. District Court for the Northern District
of Texas, alleged that the acquisition would end 22 years of direct competition between the two
supermarket chains in several markets in Texas, including metropolitan Fort Worth, Granbury,
Weatherford, Brownwood, Henderson, Denton and Marshall. The parties abandoned the
transaction before the start of the trial.
Libby, Inc. (December 18, 2001): The Commission authorized staff to seek a preliminary
injunction to block Libby’s proposed $332 million acquisition of Anchor Hocking, a subsidiary
of Newell Rubbermaid, Inc., on grounds that the acquisition would substantially lessen
competition in the market for soda-lime glassware sold to the food service industry in the United
States. A complaint was filed in the U.S. District Court for the District of Columbia on January
14, 2002. The district court granted the Commission’s request for an injunction on April 22,
2002. An administrative complaint, issued on May 9, extend the injunction until the conclusion
of the administrative proceedings. Pursuant to the delegation of authority, the Commission
withdrew the matter from adjudication on July 25, 2002, to consider a proposed consent
agreement. A consent order was finalized October 7, 2002.
Meade Instruments Corporation (May 29, 2002): The Commission authorized staff to seek a
temporary restraining order and a preliminary injunction to prevent Meade from acquiring any of
the assets that could become available as a result of the pending bankruptcy proceedings in Tasco
Holdings, Inc.’s Celestron International. According to the Commission, the purchase of the
performance telescope assets would eliminate competition in that market and create a monopoly
for the Schmidt-Cassegrain telescopes. Meade agreed not to submit any bid for Celestron or its
assets.
15

Nestlé Holdings, Inc. (March 4, 2003): The Commission authorized staff to seek a preliminary
injunction to block the merger of Nestlé and Dreyer’s Grand Ice Cream, Inc. on grounds that the
merger would reduce competition in the highly concentrated market for superpremium ice cream.
Nestlé markets superpremium ice cream under the Häagen Dazs brand; Dreyer’s superpremium
brands include Dreamery, Godiva and Starbucks.
Swedish Match AB (June 22, 2000): The Commission authorized staff to seek a preliminary
injunction to block the proposed acquisition of National Tobacco Company, L.P. on grounds that
the $165 million acquisition would lessen competition in the market for loose leaf chewing
tobacco and that Swedish Match’s market share would increase to 60 percent. On December 14,
2000, the U.S. District Court for the District of Columbia issued a 42-page opinion granting the
Commission’s motion for the injunction. On December 22, 2000, the parties abandoned the
transaction.

III. Commission Opinions/Initial Decisions
Swedish Match AB (January 5, 2001): The Commission dismissed the administrative
complaint after Swedish Match and National Tobacco Company, L.P. abandoned the transaction
that would give Swedish Match control of 60 percent of the loose leaf chewing tobacco market.
Tenet Healthcare Corporation (December 23, 1999): The Commission dismissed the
administrative complaint that challenged the acquisition of Doctors Regional Medical Center in
Poplar Bluff, Missouri after the United States Court of Appeals for the Eighth Circuit denied the
Commission’s petition for a rehearing en banc and denied the Commission’s motion to stay the
mandate in October 1999.

IV.

Court Decisions

H.J. Heinz Company (April 27, 2001): The U.S. District Court of Appeals for the District of
Columbia reversed the federal district court decision and granted the Commission’s request for
entry of a preliminary injunction to enjoined Heinz’s proposed acquisition of Milnot Holding
Company, the owner of the Beech-Nut Nutrition Corporation. Within minutes of the Appeals
Court decision, the parties abandoned the transaction.
(Dec. 14,5,2000):
Swedish Match AB (August
2002): The U.S. District Court for the District of Columbia
granted the agency’s request for a preliminary injunction to block the proposed acquisition of the
loose leaf chewing tobacco business of National Tobacco Company, L.P. The parties later
abandoned the transaction.

16

Tenet Healthcare Corporation (July 22, 1999): The U.S. Court of Appeals for the Eight
Circuit reversed the district court decision and dissolved the preliminary injunction mainly on
geographic market grounds. The Commission’s petition for rehearing was denied.

V.

Order Violations

Boston Scientific Corporation (October 31, 2000): A complaint charged that Boston
Scientific Corporation violated a 1995 consent order when it failed to provide Hewlett-Packard
Company with a license to all of its intellectual property and technical information relating to
intravascular ultrasound catheters. The complaint which seeks civil penalties and other equitable
relief, was filed by the Department of Justice on behalf of the Commission. The trial was held in
August 2002. Awaiting court decision.

VI.

Other Commission Orders

H.J. Heinz Company (December 7, 2001): The Commission dismissed the Part III
administrative complaint after Heinz abandoned its proposed merger with Milnot Holding
Company, the owner of Beech-Nut Nutrition Corporation, that would combine the nation’s
second- and third- largest manufacturers of jarred baby food, respectively.
Tenet Healthcare Corporation (December 23, 1999): The Commission decided not to
continue with administrative litigation of the complaint that charged that the proposed merger of
Tenet and Doctors Regional Medical Center would eliminate price, cost and quality competition
and put consumers at risk of paying more for health care in Poplar Bluff, Missouri. The case was
dismissed under the agency’s 1995 policy to determine on a case-by-case basis whether to pursue
administrative litigation in merger cases after a federal court has declined to bar the companies
from merging pending the outcome of an administrative trial.

VII. Complaints
Chicago Bridge & Iron Company N.V. (October 25, 2001): The Commission challenged the
February 2001 purchase of the Water Division and Engineered Construction Division of Pitt-Des
Moines, Inc. alleging that the acquisition significantly reduced competition in four separate
markets involving the design and construction of various types of field-erected specialty
industrial storage tanks in the United States. The administrative proceedings before an
administrative law judge has been concluded. Awaiting the initial decision.
H.J. Heinz Company (November 22, 2000): An administrative complaint charged that the
proposed acquisition of Milnot Holding Corporation, owner of Beech-nut Nutrition Corporation,
17

would substantially reduce competition in the manufacture and sale of jarred baby food in the
United States. On November 1, 2000, the Commission sought an emergency stay from the Court
of Appeals for the D.C. Circuit after the federal district court denied the Commission’s request
for a preliminary injunction. The Court of Appeals for the District of Columbia enjoined the
transaction. The parties abandoned the proposed transaction and the administrative complaint
was dismissed by the Commission.
Libby, Inc. (May 9, 2002): An administrative complaint charged that the proposed acquisition
of Anchor Hocking, a wholly-owned subsidiary of Newell Rubbermaid, Inc. would substantially
reduce competition in the market for soda-lime glassware sold to the food service industry in the
United States. The complaint was issued after the U.S. District Court in Washington, D.C.
enjoined the acquisition pending administrative adjudication. The matter was withdrawn from
adjudication on July 25, 2002, to consider a proposed consent agreement. A consent order was
finalized October 7, 2002.
MSC. Software Corporation (October 9, 2001): An administrative complaint challenged the
1999 acquisitions of Universal Analytics, Inc. and Computerized Structural Analysis & Research
Corp. alleging that MSC., the dominant supplier of advanced computer-aided engineering
software known as “Nastran”, acquired the other two suppliers in the market. According to the
complaint, the acquisitions eliminated competition and tended to create a monopoly the market.
The complaint was settled by a proposed consent agreement accepted for public comment issued
August 12, 2002; the consent order became final October 29, 2002.
Swedish Match AG (December 21, 2000): An administrative complaint was issued after the
United States Federal District Court for the District of Columbia granted the Commission’s
motion for a preliminary injunction to block Swedish Match North America from acquiring the
loose leaf chewing tobacco brands of National Tobacco Company. The administrative complaint
alleged that the acquisition would substantially reduce competition by combining the first and
third sellers of loose leaf chewing tobacco in the United States. According to the complaint, if
the acquisition were consummated, Swedish Match would gain a market share of 60 percent in
U.S. sales. The Commission dismissed the administrative complaint after the parties abandoned
the transaction.

VIII.

Other

Best Practices Analysis for Merger Review Process (Announced March 15, 2002): The
Commission conducted “brown bag” public workshops in Chicago, Los Angeles, New York, San
Francisco, and Washington, DC during 2002 to solicit input from a broad range of interest groups
who have participated in the Commission’s or the Department of Justice’s merger review
process. The areas under consideration included:
• the initial waiting period under HSR;
• the content and scope of the second request;
18

• negotiation of modifications to the second request;
• special issues concerning electronic records and accounting of financial data.
Suggested remedies include:
• the package of assets to be divested;
• the manner of a proposed divestiture;
• the proposed buyer of divested assets;
• the Buyer Up Front;
• the use of Fix-It-First;
• the use of Crown Jewel Provisions;
• third party rights;
• the risks to competition and to the parties;
Workshops held:
• Electronic Records (June 5, 2002) Washington, DC
• General Session on Best Practices for Merger Investigations (June 5, 2002) San
Francisco, CA
• General Session on Best Practices for Merger Investigations (June 12, 2002) Chicago,
IL
• General Session on Best Practices for Merger Investigations (June 25, 2002) Los
Angeles, CA
• General Session on Best Practices for Merger Investigations (June 27, 2002)
Washington, DC
• Workshop on Accounting and Financial Data (July 10, 2002) Washington, DC
Business-to-Business (Report Announced October 26, 2000): A staff report, “Entering the
21st Century: Competition Policy in the World of B2B Electronic Marketplaces” discusses
information gathered and antitrust issues addressed at the public workshop held at the
headquarters building of the Federal Trade Commission in Washington, D.C. June 29 - 30, 2000.
Business-to-Business (B2B) electronic marketplaces use the Internet to electronically connect
businesses with each other, primarily for the purposes of buying and selling a wide variety of
goods and services.
• Public Workshops held May 7 - 8, 2001 explored certain competition issues that arise in
connection with B2B and business to consumer (B2C) e-commerce. The workshop continued
the dialogue initiated at the June 2000 workshop.
Clayton Act -- Section 8 (Effective January 29, 2003): Changes in two threshold figures,
based on the change in the Gross National Product, define when it is unlawful for an individual
to serve as an officer or director of two or more competing corporations: (1) each of the two
companies has capital, surplus and undivided profits in excess of $18,193,000; and (2) the
competitive sales of each corporation exceed $1,819,300.
A Study of the Commission’s Divestiture Process (Released for Comments August 6,
1999): The staff report evaluates divestiture orders entered between 1990 and 1994 and
19

discusses factors that make divestitures more successful. The report, released for public
comment, concludes with recommendations designed to ensure more effective divestitures in the
future
Guidelines for Merger Investigations (Announced by Joseph Simons, Director, Bureau of
Competition, December 11, 2002 at the Conference on “Current Topics in Merger and Antitrust
Enforcement”, Washington, DC): The Guidelines represent the first outcome of the Best
Practices Workshop which began March 2002.
www.ftc.opa/2002/12/mergerguides
Primary components:
• Witnesses will be able to obtain investigational hearing transcripts.
• Documents will no longer have to be sorted or identified by specification.
• Second sweeps will be avoided whenever possible.
• Copies of opinions issued by the Commission’s General Counsel in appeal situations
stemming from failed negotiations between staff and the parties involved in a second request will
be posted on the Federal Trade Commission’s Web site. In addition, certain second requests and
modification letters will also be posted to provide guidance for future investigations.
• In response to second requests, parties will be able to submit documents and other
materials in an electronic format rather than in hard copy.
• Sample products are no longer required by Specification 5(a) of the Model Second
Request.
Merger Efficiency Roundtable (December 9 - 10, 2002; Washington, DC): Experts in
mergers and acquisitions from the academic, consulting, and business communities gave
presentations on how to determine whether a proposed transaction is likely to generate
efficiencies.
Merger Remedies - Second Workshop (October 23, 2002; New York, New York):
Workshop, co-hosted by the Antitrust and Trade Regulation Committee of The Association of
the Bar of the City of New York, was designed to gather information from a broad range of
interested parties regarding consent order remedies in merger and acquisition matters.

20

II. Hart-Scott-Rodino Antitrust Improvements Act
Enforcement
A.

Court Decisions

The Hearst Trust and The Hearst Corporation (October 11, 2001): Hearst and its
subsidiary paid a $4 million civil penalty to settle charges that they failed to include required
documents in the notification and report form file in 1998 for the proposed acquisition of MediSpan International, Inc. The complaint alleged that the omitted documents hindered the antitrust
agencies in their review and analysis of the proposed acquisition. The complaint, stipulation and
final judgment were filed in U.S. District Court for the District of Columbia by Commission
attorneys acting as special attorneys to the United States Attorney General. During fiscal year
2001, the Commission filed a related complaint for a permanent injunction alleging that Hearst
and First DataBank created a monopoly through the acquisition of Medi-Span, First DataBank’s
only other competitor selling software and data detailing information for pharmaceutical prices,
descriptions, dosages, and interactions. The Final Order and Stipulation requiring divestiture and
disgorgement of profits was entered December 18, 2001.

B.

Consent Orders

Blackstone Capital Partners II Merchant Banking Fund L.P. (March 31, 1999):
Blackstone and one of its general partners, Howard A. Lipson, paid $2,835,000 to settle charges
that they failed to file notification before acquiring the Prime Succession, Inc. chain of funeral
homes. When the Blackstone notification and report form was submitted, Mr. Lipson certified
the filing to be “true, correct and complete”. That filing contained no documentation relating to
the Prime acquisition, later discovered by the antitrust agencies through documentation submitted
by another filing person in an unrelated transaction. Under terms of the settlement, Blackstone
will pay $2,785,000; Mr. Lipson will pay $50,000. This is the first time HSR civil penalties have
been imposed on an individual for improper certification of an HSR Notification and Report
Form. The complaint and settlement were filed in U.S. District Court for the District of
Columbia by Commission attorneys acting as special attorneys to the U.S. Attorney General.
The Laitram Corporation (April 12, 1999): Input/Output, Inc. and The Laitram Corporation
each paid $225,000 in civil penalties to settle charges that Input/Output merged its operations
with Laitram’s DigiCOURSE subsidiary before observing the statutory waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976. According to the complaint, the parties
filed notification under HSR in October 14, 1998, but Input/Output began its control over
DigiCOURSE on October 10, 1998. The complaint and settlement were filed in U.S. District
Court for the District of Columbia by Commission attorneys acting as special attorneys to the
U.S. Attorney General.
21

C. Complaints (Complaints filed as part of a consent
agreement not listed separately)
None

D.

Rules and Formal Interpretations

Hart-Scott Rodino Reform (Amended Final Rules, Published March 12, 2002):
• Amendments to Parts 801 and 802 of the Premerger Notification Rules.
• Amendments to Section 802.21: Acquisitions of voting securities not meeting or
exceeding greater notification threshold.
Hart-Scott-Rodino Reform (Effective February 1, 2001): Significant changes in the filing
requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
• The size of transaction threshold increases from $15 million to over $50 million. The
15 percent size of transaction threshold is eliminated.
• Transactions valued at more than $200 million will be reportable without regard to “size
of person”. The current size of person test will continue to be in place for transactions valued at
$200 million or less.
• All dollar thresholds will be adjusted each fiscal year, beginning with fiscal year 2005,
to reflect changes in the gross national product during the previous year.
• A tiered fee structure replaces the standard $45,000 filing fee for all reportable
transactions. Companies will now pay $45,000 for transactions valued at less than $100 million,
$125,000 for transactions valued at $100 million to less than $500 million, and $280,000 for
transactions valued at $500 million or more.
• The length of the waiting period that follows substantial compliance with a second
request for additional information will become 30 days for most transactions (instead of 20 days
under the current law).
• Whenever the end of any waiting period falls on a Saturday, Sunday or legal holiday, the
official end of the waiting period will end on the next regular business day.
Second Requests Procedures (Effective April 5, 2000): Four new procedures and initiatives
adopted to improve the handling of second request investigations issued by the Commission.
• Prior to issuance, all second requests will be reviewed by the senior management staff
of the Bureau of Competition.
• Within five business days following the issuance of a second request the Bureau of
competition and the parties in the proposed transaction will conference to discuss the competitive
issues raised in the proposed acquisition.
• The Bureau of Competition staff will respond to party requests for modifications of the
second requests within five business days.
22

• The parties will have recourse to the Commission’s General Counsel for resolution of
second request modification issues not resolved after discussion with staff.
Affidavits and Certifications - Formal Interpretation 16 (Effective September 24, 1999):
The number of originally signed and notarized affidavits and certification pages required with
each premerger notification filing has been changed. Parties were required to submit five
original affidavits and certifications. Under new Formal interpretation 16, only one original and
four duplicate copies of affidavits and certification pages are now required.
Limited Liability Companies – Formal Interpretation 15 (Effective March 1, 1999):
Creation of an LLC which unites two or more independently-owned business under common
control may be subject to the reporting requirements of the HSR Act, if the size thresholds of the
HSR Act are met.
• Minor amendments announced March 20, 2001: The changes reflect the new $50
million filing threshold and the revision of a footnote to reflect the size-of-person test for
transactions valued at more than $200 million.

E.

Other

Premerger Notification Annual Report to Congress Pursuant to Section 201 of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (March 1999): Twenty-first
Annual Report (Fiscal Year 1998).
1999 Premerger Notification Source Book (April 1999): A compilation of the Hart-ScottRodino Rules and Regulations; Federal Register Publications; Form Filing Information; Formal
Interpretations; Press Releases; Speeches; Annual Report and the 1997 Horizontal Merger
Guidelines. The 1999 Source Book replaces the 1990 version. Available from the U.S.
Government Printing Office (stock number 018-000-00361-9).
Premerger Notification Annual Report to Congress Pursuant to Section 201 of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (August 18, 2000): Twentysecond Annual Report (Fiscal Year 1999).
Premerger Notification Annual Report to Congress Pursuant to Section 201 of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (April 30, 2001): Twenty-third
Annual Report (Fiscal Year 2000).
Premerger Notification Annual Report to Congress Pursuant to Section 201 of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (September 27, 2002): Twentyfourth Annual Report (Fiscal Year 2001).

23

III. Non-Merger Enforcement
HORIZONTAL ENFORCEMENT

A.

Commission Opinions/Initial Decisions

PolyGram Music Group (The Three Tenors) (June 28, 2002): An administrative law judge
upheld the administrative complaint generally known as The Three Tenors and involving
respondents PolyGram Holding, Inc.; Decca Music Group Limited; UMG Recordings Inc.; and
Universal Music & Video Distribution Corporation. The complaint charged PolyGram with
entering into an illegal price fixing agreement not to advertise or discount earlier albums and
video recordings of concerts featuring the Three Tenors in an effort to promote the latest concert,
thought to be less appealing to the public. The judge ordered the respondents to cease and desist
from entering into “any combination, conspiracy, or agreement” - with producers or sellers at
wholesale of audio or video products - to “fix, raise, or stabilize prices or price levels” in
connection with the sale in or into the United States of any audio or video product.
Schering-Plough Corporation (July 2, 2002): An administrative law judge dismissed all
charges of anticompetitive conduct cited in an administrative complaint issued in March 2001.
According to the judge’s opinion, complaint counsel did not “prove or properly define” the
relevant product market and Schering did not exercise monopoly power in the relevant market
described in the complaint. The complaint charged that Schering illegally paid Upsher-Smith
Laboratories millions of dollars to delay the entry of generic versions of Schering’s branded KDur 20, a widely prescribed potassium chloride supplement.
Summ it Technology and VISX (February 7, 2001): On June 4, 1999 an administrative law
judge dismissed charges against VISX, a key developer of laser eye surgery equipment and
technology, known as photo refractive keratectomy (PRK). According to the 1998 administrative
complaint, VISX and Summit Technology, the only two firms legally able to market equipment
for PRK, placed their competing patents in a patent pool and shared the proceeds each and every
time a Summit or VISX laser was used. The administrative law judge also dismissed charges
that VISX acquired a key patent by inequitable conduct and fraud on the U.S. Patent and
Trademark Office, ruling that complaint counsel failed to present evidence that an act of fraud
was committed since information was not willfully withheld from the patent office. A final order
settled the price fixing allegations in the 1998 complaint. On February 7, 2001, the Commission
dismissed its complaint after the U.S. patent and Trademark Office issued a Reexamination
Certificate of U.S. Patent No. 5,108,388.

24

B.

Court Decisions

California Dental Association (September 5, 2000): The Court of Appeals for the Ninth
Circuit by a vote of 3-0 issued an opinion that the Commission failed to prove that the
association of dentist in California engaged in anticompetitive advertising restrictions under the
rule-of-reason analysis. The court vacated and remanded the complaint with instructions that the
Commission dismiss the 1993 administrative complaint against the association. The
administrative complaint was dismissed February 15, 2001.

C.

Authorizations to Seek Preliminary/Permanent Injunctions
None

D.

Consent Orders

Abbott Laboratories and Geneva Pharmaceuticals, Inc. (Final Orders May 22, 2000):
Abbott and Geneva Pharmaceuticals settled charges that the two firms entered into an illegal
agreement to stop the marketing and development of a competing generic drug. According to the
complaint, Abbott, manufacturer of Hytrin – the brand name for terazosin HCL, a prescription
drug used to treat hypertension and benign prostatic hyperplasia, entered into an agreement with
Geneva Pharmaceuticals whereby Abbott would pay Geneva millions of dollars not to market a
generic version of Hytrin. The orders barr Abbott and Geneva, among other things, from
entering into agreements in which a generic company agrees with a manufacturer of a branded
drug to delay or stop the production of a competing drug. This provision remains in effect for a
period of ten years.
Alaska Healthcare Network (Final Order April 25, 2001): An association of 86 physicians
practicing in the Fairbanks, Alaska area settled charges that the Alaskan Healthcare Network
illegally formulated a fee schedule based on its members’ current prices for use in negotiations
with third-party payers in an effort to obtain higher prices for medical services.
American Home Products Corporation (Final Order April 5, 2002): A consent order settled
charges that American Home Products entered into an anticompetitive agreement with ScheringPlough Corporation to delay the entry of a low-cost generic drug that would be in direct
competition with a branded version developed and manufactured by Schering. According to the
complaint issued with the consent, Schering illegally paid American Home millions of dollars to
delay the entry and sale of its generic version of Schering’s K-Dur 20, a drug used to treat
patients who suffer from insufficient levels of potassium, a condition that could lead to cardiac
problems. The consent order, which expires in 10 years, prohibits American Home from
entering into such agreements in the future. On July 2, 2002, an administrative law judge issued
an initial decision dismissing the administrative complaint that challenged Schering’s agreement
25

with American Home and a similar anticompetitive agreement with Upsher-Smith Laboratories.
American Institute for Conservation of Historic and Artistic Works (Final Order October
30, 2002): A consent order settled charges that the American Institute for Conservation of
Historic and Artistic Works adopted and enforced provisions in its rules of conduct that
prohibited professional conservators to work for free or at reduce fees. The association agreed to
remove all provisions from its Code of Ethics, and its Commentaries to the Guidelines for
Practice that are inconsistent with the order. Professional conservators manage and preserve
cultural objects (including historical scientific, religious, archaeological and artistic objects).
Asociacion de Farmacias Region de Arecibo (Final Order March 2, 1999): A pharmacy
association in northern Puerto Rico and Ricardo Alvarez Class settled charges that they engaged
in an illegal boycott in an attempt to obtain higher reimbursement rates for pharmacy goods and
services under the government’s managed care plan for the indigent. The consent order prohibits
the members of the association and Mr. Class from engaging in joint negotiations for prices and
from threatening to boycott or refusing to provide pharmacy services.
Aurora Associated Primary Care Physicians, L.L.C. (Final Order July 19, 2002): A
consent order settled charges that the organization of internists, pediatricians, family physicians
and general practitioners in the Aurora, Colorado area engaged n boycotts and entered into
collective negotiations with health care insurers in an effort to increase the costs of physician
services. The order prohibits the organization from entering into any agreement with insurance
payers or providers to negotiate fees on behalf of the physicians group.
Bertlesmann Music Group, Inc. (Final Order September 6, 2000): Five distributors of
recorded music illegally required retailers to advertise compact discs (CD) at or above the
minimum advertised price (MAP) set by distribution companies in exchange for substantial
advertising payments for various types of media including television, radio, newspaper and signs
and banners within the retailers own stores. According to the complaint, large music retailers
would lose millions of dollars if they refused to follow the MAP policies. As a result of this
policy the retail prices of CD’s increased. Beginning in 1997, distributors increased the
wholesale prices for CD’s, and those wholesale prices have continued to rise each year since.
Bertlesmann and four other firms, Universal Music and Video Distribution Corporation and
UMG Recordings, Inc., Time-Warner Inc., EMI Music Distribution, and Sony Music
Entertainment represent approximately 85 percent of all CD’s purchased in the United States.
Biovail Corporation (Final Order October 2, 2002): The Commission charged Biovail
Corporation with illegally acquiring an exclusive patent license for Tiazac, a pharmaceutical used
to treat high blood pressure and chronic chest pain. The complaint further alleged that Biovail, in
an effort to maintain its monopoly, wrongfully listed the acquired patent license in the U.S. Food
and Drug Administration’s “Orange Book” for the purpose of blocking generic competition to its
branded Tiazac. The consent order requires Biovail to divest part of its exclusive rights to DOV;
prohibits the firm from taking any action that would trigger additional statutory stays on final
26

FDA approval of a generic form of Tiazac; and also prohibits Biovail from wrongfully listing any
patents in the Orange Book for a product for which the company already has an New Drug
Application from the FDA.
Biovail Corporation and Elan Corporation (Final Order August 20, 2002): A consent order
settled charges that Biovail and Elan Corporation entered into an agreement that contain
substantial monetary incentives not to compete in the market for specified dosages of generic
forms of Adalat CC, a drug used to treat hypertension. The final consent order requires the
companies to terminate their agreement and prohibits them form entering into similar agreements
in the future. This is the Commission’s first enforcement action involving an allegedly
anticompetitive agreement between two competing generic drug manufacturers.
Bristol-Myers Squibb Company (Proposed Consent Agreements Accepted for Public
Comment): Bristol-Myers Squibb Company (BMS) agreed to settle charges that it engaged in
illegal business practices to delay the entry of three low price generic pharmaceuticals that would
be in direct competition with three of its branded drugs. The complaint alleged that BMS
purposely made wrongful listings with the U.S. Patent and Trademark Office and that it also paid
a potential competitor over $70 million to delay the entry of its generic drug. The three drugs
involved in the complaint are: Taxol (containing the active ingredient paclitaxel) – used to treat
ovarian, breast, and lung cancers; Platinol (containing the active ingredient cisplatin) – used for
the treatment of various forms of cancer; and BuSpar (containing the active ingredient buspirone)
– used to manage anxiety disorders.
Capitol Records, Inc. dba “EMI Music Distribution” (Final Order September 6, 2000):
Five distributors of recorded music illegally required retailers to advertise compact discs at or
above the minimum advertised price (MAP) set by the distribution company in exchange for
substantial advertising payments for various types of media including television, radio,
newspaper and signs and banners within the retailers own stores. According to the complaint,
large music retailers would lose millions of dollars if they refused to follow the MAP policies.
As a result of this policy the retail prices of CD’s increased. Beginning in 1997, distributors
increased the wholesale prices for CD’s, and those wholesale prices have continued to rise each
year since. EMI Music Distribution, and four other firms, Bertlesmann Universal Music and
Video Distribution Corporation and UMG Recordings, Inc., Time-Warner Inc., and Sony Music
Entertainment represent approximately 85 percent of all CD’s purchased in the United States.
Chrysler Dealers (Final Order October 22, 1998 - Fair Allocation System): An
association of 25 automobile dealerships settled charges that they agreed to boycott Chrysler if
the manufacturer continued to allocate vehicles based on total sales. Competing dealers
marketed vehicles offering lower prices on the Internet and were taking substantial sales from
other dealers in the Northwest. The consent order prohibits the dealers from threatening to enter
into any boycott or refusal to deal with any automobile manufacturer or consumer.
Colegio de Cirujanos Dentistas de Puerto Rico (Final Order June 12, 2000): The dental
27

association with a membership of more than 1800 dentists practicing in Puerto Rico agreed not to
encourage its members to enter into agreements that set or fixed the fees charged or terms and
conditions under which dentists would deal with health insurance plans or other payers in an
attempt to obtain higher reimbursement rates for dental services.
Columbia River Pilots (Final Order March 1, 1999): A consent order prohibits licensed
marine pilots in the State of Oregon from imposing unreasonable noncompete agreements,
allocating customers and engaging in exclusive dealing contracts for the provision of piloting
services on the Columbia River.
Dentists of Juana Diaz, Cuamo and Santa Isabel, Puerto Rico (Final Order February 12,
1999): Dentists in three communities in Puerto Rico settled charges that they refused to provide
dental services under the government’s managed care plan for the indigent unless they received
certain prices. Under the terms of the consent order, the dentists are prohibited from jointly
boycotting or refusing to deal with any third party payer to obtain higher reimbursement rates for
dental services.
FMC Corporation and Asahi Chemical Industry Co. Ltd. (Final Order June 12, 2002): A
consent order settled charges that FMC and Asahi Chemical Industry Co. Ltd. of Japan entered
into a conspiracy to divide the world market for microcrystalline cellulose (MCC), a binder used
in making pharmaceutical tablets, into two territories. According to the complaint, FMC
allegedly agreed not to sell the pharmaceutical to customers in Japan or East Asia without Asahi
Chemical’s consent, while Asahi Chemical agreed not to sell the pharmaceutical to customers in
North America or Europe without the consent of FMC. The final order prohibits such behavior
in the future and restricts FMC from acting as the U.S. distributor for any competing
manufacturer of microcrystalline cellulose (including Asahi Chemical) for 10 years. In addition,
for five years, FMC is prohibited from distributing in the United States any other product
manufactured by Asahi Chemical.
Geneva Pharm aceuticals (Final Order May 22, 2000): Refer to discussion under Abbott
Laboratories.
Hoechst Marion Roussel (recently renamed Aventis as a result of the merger between
Hoechst AG and Rhone-Poulenc S.A.) (Final Order April 2, 2001): A consent order settled
allegations in an administrative complaint that charged that Hoechst agreed to pay Andrx
Corporation millions of dollars not to market and distribute a generic version of Hoechst’s
branded Cardizem CD, a once-a-day diltiazem drug product used in the treatment of hypertension
and angina. The consent order prohibits the companies from entering into agreements designed
to restrict the entry of generic competitors in an attempt to monopolize relevant markets .
Mesa County Physicians IPA (Final Order May 4, 1999): A Colorado physicians’
organization settled charges issued in an administrative complaint alleging that the Mesa County
IPA conspired with its members to increase prices for physician services and thereby prevented
28

third party payers such as preferred provider organizations, health maintenance organizations,
and employer health care purchasing cooperatives from offering alternative health insurance
programs to consumers in Mesa County.
Michael T. Berkley, D.C. and Mark A. Cassellius, D.C. (Final Order April 11, 2000): A
consent order settled charges that Drs. Michael T. Berkley and Mark A. Cassellius conspired to
fix prices for chiropractic services and to boycott the Gundersen Lutheran Health Plan in an
attempt to obtain higher reimbursement for chiropractic services in the La Crosse, Wisconsin
area.
National Academ y of Arbitrators (Final Order January 13, 2003): The National Academy of
Arbitrators is prohibited from adopting policies that restrict its members from advertising truthful
information about their services including prices and conditions of services under terms of a
consent order. The association is required to remove all provisions that do not conform to the
provisions in the consent order from: (1) its Code of Professional Responsibility for Arbitrators
of Labor-Management Disputes; (2) its Formal Advisory Opinions; (3) any Statements of Policy;
and (4) its Web site.
Nine West Group Inc. (Final Order April 11, 2000): Nine West Group Inc. settled charges that
it entered into agreements with retailers; coerced other retailers into fixing the retail prices for
their shoes; and restricted periods when retailers could promote sales at reduced prices. The
order prohibits Nine West from fixing the price at which dealers may advertise, promote or sell
any product. Nine West is one of the country’s largest suppliers of women’s shoes.
North Lake Tahoe Medical Group, Inc. (Final Order July 21, 1999): Physicians practicing
in the North and South Lake Tahoe areas settled charges that they conspired to fix the prices and
terms for professional services. The consent order prohibits the IPA from engaging in collective
negotiations to fix prices; refusing to deal with third party payers; and coercing payers into
accepting IPA fee schedules and minimum reimbursement rates.
Obstetrics & Gynecology Medical Corporation of Napa Valley (Final Order May 14,
2002): A doctors’ group consisting of nearly every obstetrician and gynecologist with active
medical staff privileges at the two general acute care hospitals in Napa County, California settled
charges that they restrained price and other competition by engaging in illegal agreements to fix
fees and other terms of dealing with health care insurance plans. According to the complaint
issued with the consent order, the doctors refused to deal with the third party payers except on
collectively determined terms. The consent order not only prevents the doctors from engaging in
similar practices in the future but also requires the dissolution of the group.
Professional Integrated Services of Denver, Inc., Michael J. Guese, M.D., and M arcia
A. Brauchler (Final Order July 19, 2002): A consent order settled charges that a Denver,
Colorado physician organization and its members, its president, Dr. M. J. Guese, and its nonphysician consultant, M. A. Brauchler, increased fees for services through collective boycotts and
29

agreements in a effort to fix the prices they would receive from health care insurance payers. The
order prohibits the organization and its members and other respondents from entering into any
agreement with insurance payers or providers to negotiate on behalf of the physicians group.
Sensormatic Electronics Corporation (Final Consent Order April 6, 1998): Refer to the
discussion under Checkpoint Systems, Inc.
Professionals in Wom en’s Care (Final Order October 2, 2002): Eight Denver, Colorado
physician groups specializing in obstetrics and gynecology and their non-physician agent settled
allegations that the practice group and other physicians entered into collective contracts in an
effort to increase prices and terms of services when dealing with health insurance firms and other
third-party payers. The consent order prohibits the following respondents from entering into
such agreements in the future: R.T. Welter and Associates, Inc.; R. Todd Welter; Consultants in
Obstetrics and Gynecology, P.C.; Mid Town Obstetrics & Gynecology, P.C.; Mile High
OG/GYN Associates, P.C.; The OB-GYN, P.C.; The Women’s Health Group, P.C.; Cohen and
Womack, M.D., P.C.; and Westside Women’s Care, L.L.P.
Sony Music Entertainment (Final Order September 6, 2000): Five distributors of recorded
music illegally required retailers to advertise compact discs at or above the minimum advertised
price (MAP) set by the distribution company in exchange for substantial advertising payments for
various types of media including television, radio, newspaper and signs and banners within the
retailers own stores. According to the complaint, large music retailers would lose millions of
dollars if they refused to follow the MAP policies. As a result of this policy, the retail prices of
CD’s increased. Beginning in 1997, distributors increased the wholesale prices for CD’s, and
those wholesale prices have continued to rise each year since. Sony Music Entertainment and
four other firms, Bertlesmann, Universal Music and Video Distribution Corporation and UMG
Recordings, Inc., Time-Warner Inc., and EMI Music Distribution, represent approximately 85
percent of all CD’s purchased in the United States.
South Lake Tahoe Lodging Association (Final Order October 7, 1998): Consent order
prohibits the association from entering into agreements that restrict its members from posting or
advertising room rates for lodgings in the South Lake Tahoe area of Northern California and
Nevada.
Southern Valley Pool Association (Final Order November 1, 1999): A consent order
prohibits fourteen Bakersfield, California pool construction contractors from entering into any
agreement or conspiracy to substantially raise and set swimming pool construction prices. The
order also prohibits the contractors from refusing to deal with owner-builders or home
construction contractors or developers.
Summit Technology, Inc. (Final Order February 23, 1999): Summit Technology and VISX,
Inc., two ophthalmic laser manufacturers, settled charges that they fixed prices by establishing a
patent pool to share their proceeds. The consent order prohibits each firm from engaging in any
30

price fixing practices and from restricting each other’s sales or licensing of their photorefractive
kertectomy, eye surgery that uses lasers to correct vision.
System H ealth Providers (Final Order August 20, 2002): System Health Providers and its
parent corporation, Genesis Physicians Group, Inc., settled charges that they collectively
bargained with health insurance firms to accept proposed fee schedules; discouraged members
from entering into contracts directly with payers; and refused to deal with health insurance firms
and other third-party payers except on collectively agreed upon terms. The order prohibits the
recurrence of the alleged practices and actions.
Texas Surgeons, P.A. (Final Order May 18, 2000): General surgeons and six competing
general surgery practice groups in the Austin, Texas area settled charges that they collectively
refused to deal with two health plans, forcing the plans to accept the surgeons’ demands to raise
surgical rates.
Time Warner, Inc. (Final Order September 6, 2000): Five distributors of recorded music
illegally required retailers to advertise compact discs at or above the minimum advertised price
(MAP) set by the distribution company in exchange for substantial advertising payments for
various types of media including television, radio, newspaper and signs and banners within the
retailers own stores. According to the complaint, large music retailers would lose millions of
dollars if they refused to follow the MAP policies. As a result of this policy the retail prices of
CD’s increased. Beginning in 1997, distributors increased the wholesale prices for CD’s, and
those wholesale prices have continued to rise each year since. Time-Warner Inc. and four other
firms, Bertlesmann, Universal Music and Video Distribution Corporation and UMG Recordings,
Inc., EMI Music Distribution, and Sony Music Entertainment represent approximately 85 percent
of all CD’s purchased in the United States.
Universal Music and Video Distribution Corporation and UMG Recordings, Inc. (Final
Order September 6, 2000): Five distributors of recorded music illegally required retailers to
advertise compact discs at or above the minimum advertised price (MAP) set by the distribution
company in exchange for substantial advertising payments for various types of media including
television, radio, newspaper and signs and banners within the retailers own stores. According to
the complaint, large music retailers would lose millions of dollars if they refused to follow the
MAP policies. As a result of this policy the retail prices of CD’s increased. Beginning in 1997,
distributors increased the wholesale prices for CD’s, and those wholesale prices have continued
to rise each year since. Universal Music and Video Distribution and four other firms,
Bertlesmann,, Time-Warner Inc., EMI Music Distribution, and Sony Music Entertainment
represent approximately 85 percent of all CD’s purchased in the United States.
Warner Com munications Inc. (Final Order September 17, 2001): Warner Communications,
Inc. and Vivendi Universal S.A. settled charges that they entered into agreements to fix prices
and restrict advertising. According to the complaint issued with the consent order, the two firms
formed a joint venture to distribute compact discs, cassettes, videocassettes of the public
31

performances of the Three Tenors. The venturers agreed not to advertise or discount the 1990
and 1994 concerts of the Three Tenors in an effort to restrict competition with the1998 concert.
The 1998 concert was thought to be less appealing and not as popular as the earlier
performances. The consent order prohibits the firms from restraining competition by entering
into agreements fix prices or restrict advertising in the future.
Wisconsin Chiropractic Association (Final Order May 18, 2000): The Wisconsin
Chiropractic Association and its executive director, Russell A. Leonard, settled charges that they
conspired to fix the prices for chiropractic goods and services and to boycott third party payers in
an attempt to obtain higher reimbursement rates for services and contracts in the La Crosse,
Wisconsin area.

E.

Complaints

Hoechst Marion Roussel (March 16, 2000): An administrative complaint charged that
Hoechst Marion Roussel (recently renamed Aventis as a result of the merger between Hoechst
AG and Rhone-Poulenc S.A.), the manufacturer of Cardizem CD, a once-a-day diltiazem drug
product used in the treatment of hypertension and angina, agreed to pay Andrx Corporation
millions of dollars not to market and distribute a generic version of Cardizem CD. According to
the complaint, Hoechst and Andrx conspired to create a monopoly in the market for diltiazem. A
consent order entered May 11, 2001 settled the charges.
PolyGram Music Group (The Three Tenors) (July 30, 2001): An administrative complaint
charged that the Warner and PolyGram Music Group joint venture agreed not to discount or
advertise the 1990 and 1994 Three Tenors albums and videos in an attempt to promote the 1998
Three Tenors concert. The complaint further alleged that the parties to the venture, formed to
distribute compact discs, cassettes and video cassettes, was concerned that the 1998 performance
would not be as well received as the earlier recordings. An initial decision upheld the complaint.
Rambus, Inc. (June 19, 2002): An administrative complaint charged that between 1991 and
1996, Rambus joined and participated in the JEDEC Solid State Technology Association
(JEDEC), the leading standard-setting industry for computer memory. According to the
complaint, JEDEC rules require members to disclose the existence of all patents and patent
applications that relate to JEDEC’s standard-setting work. While a member of JEDEC, Rambus
observed standard-setting work involving technologies which Rambus believed were or could be
covered by its patent applications, but failed to disclose this to JEDEC. In 1999 and 2000, after
JEDEC had adopted industry-wide standards incorporating te technologies at issue and the
industry had become locked in to the use of those technologies, Rambus sought to enforce its
patents ag

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A1cd72dc2cad1c635. Public record. Not legal advice.