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DEPARTMENT OF JUSTICE

BUREAU OF COMPETITION

ANTITRUST DIVISION

hart-scott-rodino annual report

Fiscal Year 2010

Section 7A of the Clayton Act

Hart-Scott-Rodino Antitrust Improvements Act of 1976

(Thirty-third Annual Report)

Jon Leibowitz

Christine A. Varney

Chairman

Federal Trade Commission

Assistant Attorney General

Antitrust Division

INTRODUCTION

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

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

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

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

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

premerger notification program was instrumental in alerting the Commission and the Division of

transactions that became the subjects of the numerous enforcement actions brought in fiscal year

2010 1 to protect consumers – individual, business, and government – against anticompetitive

mergers.

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

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

competitive concerns. In fiscal year 2010, 1,166 transactions were reported under the HSR Act,

representing about a 63% increase from the 716 transactions reported in fiscal year 2009 and

about a 51% decrease from the 2,376 transactions reported in fiscal year 2001, the last partial

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

HS R Merger Transactions Reported

Fiscal Years 2001-2010

N u mbe r o f Tr a n s a c t io n s

4,000

3,000

2,376

2,201

1,675

2,000

1,768

1,726

1,428

1,187

1,166

1,014

716

1,000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

Fis c a l ye a r

(Fig u r e 1)

During the year, the Commission challenged 22 transactions, leading to 19 consent

orders, one of which was obtained after the Commission filed an administrative complaint, and

The fiscal year covers the period of October 1, 2009 through September 30, 2010.

The decrease in the number of reportable transactions since fiscal year 2001 is, to a considerable extent, a

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

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

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

fiscal year 2010, the threshold was adjusted to $63.4 million. Section 630 of the Department of Commerce, Justice,

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

See also Appendix A.

three transactions that were abandoned after the parties learned of the Commission’s concerns.

One of the Commission’s notable challenges was against Dun & Bradstreet’s consummated

acquisition of Quality Education Data, which produces data used to sell books, educational

materials, and other products to teachers nationwide. The Commission filed an administrative

complaint to challenge this acquisition, but before trial, Dun & Bradstreet agreed to divest to a

Commission-approved buyer certain assets acquired in the merger to restore competition. Other

notable challenges were against proposed mergers in key industries that are critical to consumers,

including pharmaceuticals and energy. In the pharmaceutical industry, the Commission

challenged Watson Pharmaceutical’s proposed acquisition of rival generic drug company Arrow

Pharmaceuticals, asserting that the merger, as originally proposed, would have substantially

reduced competition in U.S. markets for important generic drugs used to treat Parkinson’s

disease and the side effects of chemotherapy. To restore the competition that would have been

lost as a result of the merger, the Commission required the firms to sell assets related to two

drugs. In the energy industry, the Commission also challenged Pilot Corporation’s proposed

acquisition of Flying J Inc.’s travel center network. To resolve the Commission’s concerns,

Pilot, owner of the largest travel center network in the United States, agreed to sell 26 travel

centers, which provide diesel, food, parking, and other amenities for truckers, as part of a

settlement that will replace the competition that would have been lost because of the acquisition.

The Antitrust Division challenged 19 merger transactions. Consent decrees resolved ten

of these challenges 3 , one matter is currently in litigation, and eight transactions were abandoned

or restructured after the Division informed the parties of its antitrust concerns relating to the

transaction. Notably, the Division obtained a consent decree requiring Ticketmaster

Entertainment Inc. to license its ticketing software, divest ticketing assets and subject itself to

anti-retaliation provisions in order to proceed with its proposed merger with Live Nation Inc.,

thereby remedying anticompetitive effects in the sale of primary ticketing services. The Division

also sued and is currently in litigation seeking to undo Dean Foods’ acquisition of the Consumer

Products Division of Foremost Farms USA, alleging that the acquisition was likely to

substantially lessen competition in the sale of school milk and fluid milk to school districts and

other purchasers located in Wisconsin, the Upper Peninsula of Michigan, and Northeastern

Illinois. In another notable challenge, the Division alleged that an acquisition by Election

Systems and Software, Inc., substantially lessened competition in the market for voting

equipment systems and obtained a consent decree requiring divestiture of all voting equipment

systems assets acquired in that consummated transaction.

In fiscal year 2010, the Commission’s Premerger Notification Office (PNO) continued to

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

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

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

provide improved access to information necessary to the notification process. The website

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

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

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

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

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

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

information for PNO staff, and frequently asked questions regarding the HSR filing

requirements. Web users can also find up-to-date information on changes to the Act and

One consent decree addressed two separate mergers.

amendments to the premerger rules, including speeches, press releases, summaries and

highlights, and Federal Register notices about any amendments. The website also includes a

database of informal interpretation letters, giving the public ready access to PNO staff

interpretations of the premerger notification rules and the Act. As always, PNO staff is available

to help HSR practitioners comply with HSR notification requirements.

BACKGROUND OF THE HSR ACT

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

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

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

the Commission and the Antitrust Division prior to consummation. The parties must then wait a

specified period, usually 30 days (15 days in the case of a cash tender offer or a bankruptcy sale),

before they may complete the transaction. Whether a particular acquisition is subject to these

requirements depends upon the value of the acquisition and, in certain acquisitions, the size of

the parties as measured by their sales and assets. Small acquisitions, acquisitions involving small

parties, and certain classes of acquisitions that are less likely to raise antitrust concerns are

excluded from the Act’s coverage.

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

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

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

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

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

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

is immediately available for review during the waiting period.

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

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

information and documentary material (second request). The second request extends the waiting

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

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

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

reviewing agency with the opportunity to analyze the information and to take appropriate action

before the transaction is consummated. If the reviewing agency believes that a proposed

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

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

transaction in administrative litigation.

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

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

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

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

the filing form. 4 The program became effective on September 5, 1978. The Commission, with

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

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

of complying with the rules. 5 During fiscal year 2010, the Commission proposed giving the

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

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

HSR form its most extensive overhaul since its creation. The proposed changes are intended to

reduce the burden of filing parties, while capturing additional information that will significantly

assist the agencies in their initial review. 6

A STATISTICAL PROFILE OF THE PREMERGER NOTIFICATION PROGRAM

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

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

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

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

termination of the waiting period were received, granted, and not granted. 7 Appendix A also

shows, for fiscal years 2001 through 2010, the number of transactions in which second requests

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

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

reported and the number of filings received for fiscal years 2001 through 2010.

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

fiscal year 2010 increased 63% from the number of transactions reported in fiscal year 2009. In

fiscal year 2010, 1,166 transactions were reported, while 716 were reported in fiscal year 2009. 8

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

requests were issued in fiscal year 2010 increased 48% from the number of merger investigations

in which second requests were issued in fiscal year 2009. Second requests were issued in 46

merger investigations in fiscal year 2010 (20 issued by the FTC and 26 issued by the Division),

while second requests were issued in 31 merger investigations in fiscal year 2009 (15 issued by

the FTC and 16 issued by the Division). The percentage of transactions resulting in second

requests decreased slightly, from 4.5% in fiscal year 2009 to 4.1% in fiscal year 2010. (See

Figure 2 below.)

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

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

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

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

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

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

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

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

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

35995 (June 23, 2006); 72 Fed. Reg. 2692 (January 22, 2007); 75 Fed. Reg. 57110 (September 17, 2010).

75 Fed. Reg. 57110 (September 17, 2010).

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

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

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

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

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

This Report, like previous Reports, also includes annual data on “adjusted transactions in which a second

request could have been issued” (“adjusted transactions”). See Appendix A and n. 2 of Appendix A (explaining

calculation of that data). There were 1128 adjusted transactions in FY 2010, and the data presented in the Tables

and the percentages discussed in the text of this Report (e.g., percentage of transactions resulting in second requests)

are based on this figure.

Pe r c e n t a g e o f Tr a n s a c t i o n s Re s u l t i n g i n Se c o n d Re q u e s t

Fi s c a l Ye a r s 2001-2010

4 .5 %

5 .0 %

4 3%

4 .1 %

4 .5 %

3 .6 %

Pe r c en t o f Tr a n s a c t io n s

4 .0 %

3 .5 %

3 .1 %

3 .0 %

2 .6 %

2 .5 %

3 .0 %

2 .5 %

2 .0 %

1 .5 %

1 .0 %

0 .5 %

0 .0 %

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

Fis c a l ye a r

(Fig u r e 2)

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

requested in the majority of transactions. In fiscal year 2010, early termination was requested in

84% (953) of the transactions reported, remaining unchanged from fiscal year 2009 when it was

also requested in 84% (575) of the transactions reported. The percentage of requests granted out

of the total requested increased from 69% in fiscal year 2009 to 74% in fiscal year 2010.

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

agencies’ enforcement activities for transactions reported in fiscal year 2010. The tables

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

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

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

in fiscal year 2010, clearance was granted to one or the other of the agencies for the purpose of

conducting an initial investigation in 19.7% of the total number of the transactions reported. The

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

and the reporting threshold indicated in the notification report.

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

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

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

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

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

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

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

2008, and to $533 billion in fiscal year 2009, and increased to $780 billion for fiscal year 2010. 9

The information on the value of reported transactions for fiscal year 2010 is drawn from the Premerger

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

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

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

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

percentage of reportable transactions within industry groups for fiscal year 2010 based on the

acquired entity’s operations. 10

Pe r c e n t a g e o f Tr a n s a c t i o n s By In d u s t r y G r o u p o f Ac q u i r e d En t i t y

Fi s c a l Ye a r 2010

H ea l t h Ser v ic es , 4 .0 %

Ch emic a l s &

Ph a r ma c e u t ic a l s , 5 .9 %

Tr a n s po r t a t io n , 1 .2 %

En er g y & N a t u r a l

Res o u r c es , 6 8 %

Co n s u mer G o o d s &

Ser v ic es , 2 6 .3 %

In f o r ma t io n

Te c h n o l o g y, 9 .0 %

O t h er , 1 8 .2 %

Ma n u f a c t u r in g , 1 2 1 %

Ba n k in g & In s u r a n c e,

1 6 .5 %

(Fig u r e 3)

DEVELOPMENTS WITHIN THE PREMERGER PROGRAM

1. Compliance

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

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

of compliance investigations in fiscal year 2010. The agencies monitor compliance through a

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

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

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

suppliers, interested members of the public, and in some cases the parties themselves, often

provide the agencies with information about transactions and possible violations of the Act’s

requirements.

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

notification and waiting period requirements is liable for a civil penalty of up to $16,000 –

increased in 2009 from $11,000 – for each day the violation continues.11 The antitrust agencies

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

performing arts, recreation, and non-classifiable establishments.

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

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

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

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

corrected at 61 Fed. Reg. 55840 (October 29, 1996)) and to $16,000 effective February 10, 2009 (74 Fed. Reg. 8576

examine the circumstances of each violation to determine whether penalties should be sought. 12

During fiscal year 2010, 24 corrective filings for violations were received, and the agencies

brought one enforcement action, resulting in the payment of $900,000 in civil penalties.

In this enforcement action, United States v. Smithfield Foods, Inc. and Premium Standard

Farms, LLC, 13 the complaint alleged that prior to the expiration of the statutory waiting period

applicable to Smithfield’s acquisition of Premium Standard, Premium Standard stopped

exercising independent business judgment in its hog purchases. Instead, it submitted for

Smithfield’s consent each of the three contracts for hog purchases from independent producers

that arose during the HSR waiting period. These hog procurement contracts were necessary to

Premium Standard’s ongoing business and entered into in the ordinary course. Through this

conduct, Smithfield exercised operational control over Premium Standard’s hog procurement and

thereby acquired beneficial ownership of a significant segment of Premium Standard’s business.

Such “gun jumping” is prohibited by the Act. Under the terms of a consent decree filed

simultaneously with the complaint and entered by the Court on January 22, 2010, the companies

were required to pay a total of $900,000 in civil penalties to settle the charges.

2. Threshold Adjustments

The 2000 amendments to the HSR Act require the Commission to publish adjustments to

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

national product, in accordance with Section 8(a)(5) of the Clayton Act for each fiscal year

beginning after September 30, 2004. The Commission amended the rules in 2005 to provide a

method for future adjustments as required by the 2000 amendments and to reflect the revised

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

become effective 30 days after publication.

On January 21, 2010, the Commission published a notice 14 to reflect adjustment of

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

U.S.C. §18a. The revised threshold, which dropped from $65.2 million to $63.4 million, became

effective February 22, 2010.

3. International Cooperation

The Commission and the Antitrust Division routinely cooperate with their non-U.S.

counterparts in merger investigations to promote transparency and predictability as well as

convergence, where appropriate, towards the best practices of merger review. These efforts

enable multiple jurisdictions to manage the similarities and differences in their approach to

merger review with the goal of more efficient and effective merger enforcement worldwide to

the benefit of consumers and businesses. Additionally, these efforts reduce the risk of

inconsistent outcomes and remedies among agencies. In some instances cooperation with nonU.S. competition authorities is particularly extensive. During the past year, the FTC worked on

01 (January 9, 2009)).

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

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

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

United States v. Smithfield Foods, Inc. and Premium Standard Farms, LLC, No.1:10-CV-00120 (D.D.C.

filed January 21, 2010).

75 Fed. Reg. 3468 (January 21, 2010).

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

over 15 international merger investigations that involved coordination or cooperation with

international counterparts. Highlighted examples from the year are Nufarm/A.H. Marks and

Panasonic/Sanyo. In the Nufarm matter, the Commission worked particularly closely with staff

from the Canadian Competition Bureau throughout the investigation to arrive at a proposed

settlement order that restored competition in both the U.S. and Canadian markets for certain

types of herbicides. In the Panasonic/Sanyo matter, the Commission worked with its

counterparts in the European Commission (EC), Canada, and Japan to resolve competitive

concerns raised by Panasonic’s proposed $9 billion acquisition of Sanyo. The FTC and the EC’s

Directorate General for Competition coordinated to order the divestiture of a battery

manufacturing facility in Japan to protect competition in the market for portable NiMH batteries

that power two-way radios used by police and fire departments. Of the Antitrust Division’s

investigations that were closed during fiscal year 2010, the Division coordinated with one or

more non-U.S. competition agencies in eleven matters. Amongst the Antitrust Division’s most

notable instances of international cooperation were its Ticketmaster matter and Cisco Systems

Inc.’s acquisition of Tandberg ASA. In its Ticketmaster matter 16 , the Division cooperated

closely with the Canadian Competition Bureau throughout the investigation, and the two

agencies worked together to obtain the same remedy. The Division and the EC cooperated

closely to resolve competition issues regarding Cisco Systems Inc.’s acquisition of Tandberg

ASA. In announcing that it would not challenge the acquisition, the Division stated that it had

taken into account commitments Cisco had made to the EC as part of the EC’s merger clearance

process, along with various market factors, and stated that the investigation “was a model of

international cooperation between the United States and the European Commission.” 17 In many

instances, international cooperation is aided by the parties’ waivers of certain confidentiality

rights so the agencies can have more meaningful discussions regarding their analyses of the

merger and, if enforcement action is warranted, seek compatible remedies.

MERGER ENFORCEMENT ACTIVITY 18

The Department of Justice

During fiscal year 2010, the Antitrust Division challenged 19 merger transactions that it

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

consummated. In eleven of these challenges, the Antitrust Division filed a complaint in U.S.

district court. 19 Ten of these challenges were settled by consent decree, and one matter is

currently in litigation. In the other eight challenges during fiscal year 2010, when apprised of the

Antitrust Division’s concerns regarding their proposed transactions, the parties in four instances

abandoned the proposed transaction and in four instances restructured the proposed transaction to

avoid competitive problems. 20

See infra at p. 10.

http://www.justice.gov/atr/public/press releases/2010/257173.pdf.

The cases listed in this section were not necessarily reportable under the premerger notification program.

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

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

information has already been disclosed.

The Division filed ten complaints. One of those complaints challenged two transactions, and both of

those challenges were resolved in one consent decree.

In two instances, the Division issued a press release: March 8, 2010 – proposed acquisition of Physicians

Health Plan of Mid-Michigan by Blue Cross Blue Shield of Michigan (commercial health insurance); and August

27, 2010 – proposed merger of Continental Airlines and United Airlines (takeoff and landing rights at Newark

Liberty Airport). In the other six instances, the Division informed the parties of its concerns, but did not issue a

press release: proposed acquisition of National Amusements, Inc. by New Rave (movie theatres); proposed

In United States et al. v. AT&T Inc. and Centennial Communications Corp., 21 the

Division and the State of Louisiana challenged the proposed acquisition of Centennial

Communications Corp. by AT&T. The complaint alleged that the transaction, as originally

proposed, would have substantially lessened competition for mobile wireless

telecommunications services in eight cellular marketing areas (CMAs), as defined by the Federal

Communications Commission (FCC), likely resulting in higher prices, lower quality and reduced

network investments. AT&T and Centennial were each other’s closest competitor for a

significant set of customers in the eight CMAs. The Division filed a proposed consent decree

simultaneously with the complaint. Under the terms of the decree, which was entered by the

court on February 10, 2010, AT&T was required to divest assets in the eight affected CMAs in

southwestern and central Louisiana and southwestern Mississippi in order to proceed with the

acquisition. The Division coordinated with the FCC throughout its investigation, and the

acquisition was also subject to FCC review.

In United States v. Cameron International Corporation and NATCO Group Inc., 22 the

Division challenged both Cameron’s proposed $780 million acquisition of NATCO and

Cameron’s previous $8.5 million acquisition of assets of Howe Baker Engineers Ltd. The

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

lessened competition in the manufacture of refinery desalters in the United States. The

complaint also alleged that Cameron’s acquisition of the Howe Baker assets in 2005 had

substantially lessened competition and created a monopoly in that market. Refinery desalters are

used to remove salt from crude oil at the oil refining stage of production. The desalting process

is a critical initial stage of the refining process. Cameron and NATCO, a recent entrant, were

each other’s closest competitor for a significant set of refinery customers domestically. The

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

the decree, Cameron was required to divest the desalter and dehydrator assets it purchased from

Howe Baker. The decree also required Cameron to divest a non-exclusive, worldwide,

irrevocable license to NATCO’s refinery desalter technology that utilizes dual frequency

transformers. The court entered the consent decree on May 11, 2010.

In United States et al. v. Stericycle, Inc., ATMW Acquisition Corp., Medserve, Inc., and

Avista Capital Partners, L.P., 23 the Division and the States of Missouri and Nebraska challenged

the acquisition of Medserve by Stericycle. The complaint alleged that the transaction, as

originally proposed, would have substantially lessened competition in infectious waste collection

and treatment services to hospitals and other critical healthcare facilities in Kansas, Missouri,

Nebraska, and Oklahoma, resulting in higher prices and reduced service. Stericycle and

Medserve were the two largest providers of infectious waste collection and treatment services in

the United States, and were the only two firms able to compete for customers that generated

acquisition of NSTAR Corporation’s thermal distribution system in the Boston, Massachusetts area by Morgan

Stanley Infrastructure Partners and Veolia North America Holdings, Inc. (steam distribution); proposed acquisition

of Spheris Holding II, Inc. by Nuance Communications, Inc. (automatic speech recognition); proposed acquisition

of Lewis Brothers Bakeries’ Butternut brand by Hostess Brands, Inc. (white pan bread); proposed acquisition of CPI

International, Inc. by Comtech Telecommunications Corp. (traveling wave tube amplifiers); and Continental

Airlines and AirTran Airways (exchange of slots at Newark, LaGuardia, and Reagan Washington National airports).

United States et al. v. AT&T Inc. and Centennial Communications Corp., No. 1:09-CV-01932 (D.D.C.

filed October 13, 2009).

United States v. Cameron International Corporation and NATCO Group Inc., No. 1:09-CV-02165

(D.D.C. filed November 17, 2009).

United States et al. v. Stericycle, Inc., ATMW Acquisition Corp., Medserve, Inc., and Avista Capital

Partners, L.P., No. 1:09-CV-02268 (D.D.C. filed November 30, 2009).

large quantities of infectious waste in the affected geographic areas. The Division filed a

proposed consent decree simultaneously with the complaint, requiring divestiture of all of

MedServe’s assets primarily used in the provision of infectious waste collection and treatment

services to large customers in Kansas, Missouri, Nebraska, and Oklahoma to a viable purchaser

approved by the Department. The court entered the decree on April 30, 2010.

In United States et al. v. Dean Foods Company, 24 the Division and the States of Illinois,

Michigan, and Wisconsin sued seeking to undo Dean’s April 2009 acquisition of the Consumer

Products Division of Foremost Farms USA, which included two dairy processing plants, located

in Waukesha and DePere, Wisconsin. Dairy processors, such as Dean and Foremost, purchase

raw milk from dairy farms and agricultural cooperatives and then pasteurize and package the

milk for sale to school districts, supermarkets and other commercial customers. The complaint

alleged that the acquisition was likely to substantially lessen competition both in the sale of

school milk to individual school districts located throughout Wisconsin and the Upper Peninsula

of Michigan and in the sale of fluid milk to purchasers located in those areas and in Northeastern

Illinois. Dean and Foremost were the first and fourth largest sellers of school milk and fluid milk

in the region, and the acquisition resulted in Dean accounting for more than 57% of fluid milk

sales. Because the acquisition was valued at $35 million, premerger notification to the federal

antitrust agencies under the HSR Act had not been required. On April 7, 2010, the district court

denied defendant’s motion to dismiss the complaint, and the suit remains in litigation.

In United States et al. v. Ticketmaster Entertainment, Inc. and Live Nation, Inc., 25 the

Division, joined by 17 state attorneys general (Arizona, Arkansas, California, Florida, Illinois,

Iowa, Louisiana, Massachusetts, Nebraska, Nevada, Ohio, Oregon, Pennsylvania, Rhode Island,

Tennessee, Texas, and Wisconsin), challenged the acquisition of Live Nation by Ticketmaster

Entertainment. The complaint alleged that the transaction, as originally proposed, would be

likely to lessen competition substantially for primary ticketing services to major concert venues

located in the United States, and thus likely to result in higher prices and less innovation for

consumers. Primary ticketing services facilitate the initial sale of tickets to concertgoers through

websites, call centers, and retail networks. Ticketmaster was the largest primary ticketing

company in the United States. Live Nation, the largest concert promoter in the United States,

had entered the market for primary ticketing services in December, 2008. A proposed consent

decree was filed simultaneously with the complaint. Under the terms of the decree, entered by

the court on July 30, 2010, the merged firm must license ticket software and divest ticketing

assets to two companies, Anschutz Entertainment Group and either Comcast-Spectacor or

another buyer suitable to the Division, allowing both companies to compete head-to-head with

the merged entity. The decree also prohibits the merged firm from engaging in certain conduct,

such as retaliating against any venue owner that chooses to use another company’s ticketing

services, and requires firewalls to protect confidential and valuable competitor data by

preventing the merged firm from using information gleaned from its ticketing business in the

day-to-day operations of its promotions or artist management business.

In United States v. Bemis Company, Inc., Rio Tinto plc and Alcan Corporation, 26 the

Division challenged the proposed $1.2 billion acquisition of the Alcan Packaging Food Americas

business by Bemis from Rio Tinto, the parent of Alcan Corporation. The complaint alleged that

United States et al. v. Dean Foods Company, No. 10-C-0059 (E.D. WI filed January 22, 2010).

United States et al. v. Ticketmaster Entertainment, Inc. and Live Nation, Inc., No. 1:10-CV-00139

(D.D.C. filed January 25, 2010).

United States v. Bemis Company, Inc., Rio Tinto plc and Alcan Corporation, No. 1:10-CV-00295

(D.D.C. filed February 24, 2010).

the acquisition, as originally proposed, likely would have substantially lessened competition in

the United States and Canada for the development, production, and sale of both flexiblepackaging rollstock for chunk, sliced and shredded natural cheese packaged for retail sale and

flexible-packaging shrink bags for fresh meat. Flexible packaging products for natural cheese

and fresh meat are unique in that they must meet strict performance standards to prevent

spoilage, maintain product appearance, operate properly on customers’ packaging equipment,

and adhere to unique standards specific to the particular products. As a result, these types of

flexible packaging are difficult to manufacture and commercialize successfully. The Division

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

decree, Bemis was required to divest certain assets, including plants and intellectual property,

used in the production and sale of flexible packaging for natural cheese and fresh meat. The

court entered the decree on July 13, 2010.

In United States et al. v. Election Systems and Software, Inc, 27 the Division, joined by

nine state attorneys general (Arizona, Colorado, Florida, Maine, Maryland, Massachusetts, New

Mexico, Tennessee, and Washington), challenged the 2009 acquisition of Premier Election

Solutions, Inc. and PES Holdings, Inc. (collectively, “Premier”) by Election Systems and

Software, Inc. (“ES&S”). The complaint alleged that the acquisition substantially lessened

competition in the market for voting equipment systems, as it combined the two largest providers

of systems used to tally votes in federal, state, and local elections in the United States. As a

result of the acquisition, which did not require notification under the HSR Act because its $5

million value fell below the Act’s reporting threshold, ES&S became the provider of more than

70 percent of the voting equipment systems in the United States. The Division filed a proposed

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

on June 30, 2010, required that ES&S divest Premier voting equipment systems assets it had

acquired, including the means to produce all versions of Premier’s hardware, software, and

firmware used to record, tabulate, transmit, or report votes.

In United States v. Baker Hughes Incorporated and BJ Services Company, 28 the Division

challenged the proposed $5.5 billion acquisition of BJ Services by Baker Hughes. The complaint

alleged that the acquisition, as originally proposed, would likely substantially lessen competition

by combining two of only four companies that provide specialized pumping services, called

vessel stimulation services, necessary for the production of oil and gas from wells in the U.S.

Gulf of Mexico. These critical services prevent sand from interfering with the flow of oil and

gas from wells in the Gulf and are performed using specially designed and equipped vessels that

are operated by experienced crews and supported by scientists, engineers, and other lab

technicians who customize the stimulation job for the specific well formation. The Division

filed a proposed consent decree simultaneously with the complaint, requiring divestiture of two

vessels used for providing stimulation services. The court entered the decree on July 26, 2010.

In United States et al. v. AMC Entertainment Holdings, Inc. and Kerasotes Showplace

Theatres, LLC, 29 the Division and the States of Illinois, Colorado, and Indiana challenged AMC

Entertainment Holdings’ proposed acquisition of most of the movie theaters operated by

Kerasotes Showplace Theatres. The complaint alleged that the transaction, as originally

United States et al. v. Election Systems and Software, Inc., No.1:10-CV-00380 (D.D.C. filed March 8,

2010).

United States v. Baker Hughes Incorporated and BJ Services Company, No. 1:10-CV-00659 (D.D.C.

filed April 27, 2010).

United States et al. v. AMC Entertainment Holdings, Inc. and Kerasotes Showplace Theatres, LLC, No.

1:10-CV-00846 (D.D.C. filed May 21, 2010).

proposed, would likely substantially lessen competition among movie theaters that show firstrun, commercial movies in the Chicago, Illinois, Denver, Colorado, and Indianapolis, Indiana

metropolitan areas, resulting in higher ticket prices and a decreased quality viewing experience

for moviegoers. The Division filed a proposed consent decree simultaneously with the

complaint. Under the terms of the decree, which was entered by the court on August 9, 2010,

AMC was required to divest the following movie theaters: AMC Gardens 13 and Kerasotes Glen

10 (North Suburban Chicago); AMC Cantera 30 (Upper Southwest Suburban Chicago);

Kerasotes Showplace 12 Bolingbrook (Lower Southwest Suburban Chicago); Kerasotes Colony

Square 12 (Upper Northwest Denver); Kerasotes Olde Town 14 (Lower Northwest Denver);

AMC Castleton Square 14 or Kerasotes Showplace 12 Glendale Town (North Indianapolis); and

AMC Greenwood 14 (South Indianapolis).

In United States v. Amcor Ltd., Rio Tinto Plc and Alcan Corporation, 30 the Division

challenged the proposed acquisition of Rio Tinto’s Alcan Packaging Medical Flexibles business

by Amcor Ltd. The complaint alleged that the transaction, as originally proposed, would

substantially lessen competition in the development, production and sale of vented bags for

medical use in the United States. Vented bags are a type of flexible packaging used to package

large or bulky medical items such as drapes, gowns, and surgery trays and kits. Vented bags

must meet rigorous performance and qualification standards because failure of the package in the

sterilization process could expose the contents to microbes, bacteria, or particulates, which could

cause injury, sickness, or even death to a patient. Under the terms of the proposed consent

decree filed simultaneously with the complaint, the companies were required to divest Alcan

Packaging’s Marshall, North Carolina plant, which manufactured all of Alcan Packaging’s

vented bags for medical use. The court entered the decree on October 6, 2010.

Additionally during fiscal year 2010, the Division settled via consent decree a merger

challenge brought in 2007. In United States v. Daily Gazette Company and MediaNews Group,

Inc., Cv. No: 2:07-0329 (S.D.W.V. filed 5/22/07) 31 , the Division filed a proposed consent decree

on January 20, 2010. Under the terms of the decree, which was entered by the court on July 19,

2010, the parties were required to restructure their newspaper joint operating arrangement and

take other steps to remedy the anticompetitive effects of a series of transactions entered into in

2004. MediaNews Group (now known as Affiliated Media Inc.) will regain independent control

over the operations of the Charleston Daily Mail and economic incentives to grow the

newspaper. The settlement also requires the parties to offer substantial discounts of the

Charleston Daily Mail in order to rebuild its subscriber base and prohibits the Daily Gazette

from discriminating against the Charleston Daily Mail in circulation, advertising sales, and other

key joint activities. In addition, the companies are required to continue publishing the

Charleston Daily Mail as long as it has not failed financially.

United States v. Amcor Ltd., Rio Tinto Plc and Alcan Corporation, No. 1:10-CV-00973 (D.D.C. filed

June 10, 2010) .

See the HSR Annual Report, Fiscal Year 2007 for a description of this case.

The Federal Trade Commission

During fiscal year 2010, the Commission challenged 22 transactions that it had reason to

believe may have lessened competition if allowed to proceed as proposed or, in the case of

consummated transactions, to remain unchallenged, 32 leading to 18 consent orders in non

adjudicative proceedings, one administrative complaint, and three transactions that were

abandoned after Commission staff informed the parties of its antitrust concerns. In the one case

in which the Commission issued an administrative complaint, the parties settled the charges by

agreeing to a divestiture.

In The Dun & Bradstreet Corporation/QED, 33 the Commission issued an administrative

complaint challenging The Dun & Bradstreet Corporation’s February 2009 acquisition of Quality

Education Data (QED) and alleging that the deal hurt consumers by eliminating nearly all

competition in the market for kindergarten through twelfth-grade educational marketing

databases. The data sold by these companies is used to sell books, education materials, and other

products to teachers and other educators nationwide. The combination of the two companies

gave Dun & Bradstreet, through its subsidiary Market Data Retrieval, more than 90% of the

market for K-12 educational marketing data. To settle the charges, Dun & Bradstreet agreed to

divest certain assets to an independent data company, restoring competition that had been

eliminated as a result of the transaction.

In fiscal year 2010, the Commission accepted consent agreements and issued proposed

orders for public comment in 18 merger cases. Thirteen of the consent orders became final in

fiscal year 2010; five either became final in fiscal year 2011 or are still pending.

In Pfizer Inc./Wyeth, 34 the Commission challenged Pfizer Inc.’s proposed $68 billion

acquisition of Wyeth, alleging that the transaction would have reduced competition in several

markets for the manufacture and sale of animal vaccines and pharmaceutical products, leaving

veterinarians and other animal health product customers with limited options. To settle the

Commission’s claims, the companies agreed to sell animal health business assets to a

Commission-approved buyer.

In Merck/Schering-Plough, 35 the Commission’s review of Schering-Plough’s proposed

$41.1 billion acquisition of Merck resulted in significant divestitures to resolve concerns that the

merger would have reduced competition in several animal health care markets and in the market

for drugs used to treat nausea and vomiting in surgical and chemotherapy patients. Before the

merger, the companies were two of the leading animal health pharmaceutical suppliers in the

United States, and competed head-to-head in several markets. In addition, Merck’s Emend

product is the first and only drug in its class, NK 1 receptor antagonists, approved for human use

to treat side effects of chemotherapy. Schering-Plough was in the process of licensing an

equivalent drug to a third party when its transaction with Merck was announced. According to

the complaint, the merger would likely have reduced the combined firm’s incentives to launch

Schering-Plough’s competing drug. To resolve the Commission’s concerns in the market for NK

1 receptor antagonist drugs for nausea and vomiting, Schering-Plough agreed to divest its related

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

Commission took its first public action during fiscal year 2010.

FTC v. The Dun & Bradstreet Corporation, Dkt. No. 9342 (administrative complaint issued May 7,

2010).

In the matter of Pfizer Inc./Wyeth, Docket No. C-4267 (proposed order issued Oct. 14, 2009).

In the matter of Merck/Schering-Plough, Docket No. C-4268 (proposed order issued Oct. 29, 2009).

assets to Opko Health, Inc. To remedy concerns about animal health product competition,

Merck agreed to sell its interest in Merial (an animal health joint venture) to Sanofi-Aventis, its

joint venture partner.

In Panasonic/Sanyo, 36 the Commission challenged major consumer electronics

manufacturer Panasonic Corporation's proposed $9 billion acquisition of Sanyo Electric Co.,

Ltd., requiring that Sanyo sell its portable nickel metal hydride (NiMH) battery business,

including a premier manufacturing plant in Japan. NiMH batteries power two-way radios,

among other products, which are used by police and fire departments nationwide. Panasonic and

Sanyo were the two largest manufacturers and sellers of these batteries. The Commission order

will maintain competition through the divestiture to FDK Corporation.

In SCI/Palm Mortuary, 37 the Commission challenged Service Corporation International's

(SCI) proposed acquisition of Palm Mortuary, Inc., a competitor in the cemetery services

business in Las Vegas, Nevada. The Commission required that SCI, the nation’s largest

cemetery operator, must sell a cemetery and funeral home in Las Vegas to complete its proposed

acquisition of Palm Mortuary.

In Watson Pharmaceuticals/Arrow Group, 38 the Commission challenged Watson

Pharmaceutical’s proposed $1.7 billion acquisition of rival generic drug company Arrow

Pharmaceuticals, alleging that the transaction would have substantially reduced competition in

the U.S. markets for important generic drugs used to treat Parkinson’s disease and the side

effects of chemotherapy. To remedy the Commission’s concerns, Watson and Arrow agreed to

sell certain rights and assets related to the two drugs to Commission-approved buyers to ensure

continued competition in these markets.

In Agrium/CF Industries, 39 agricultural products supplier Agrium Inc. agreed to sell a

range of assets as part of an agreement with the Commission that will allow the company to

move forward with its acquisition of competitor CF Industries Holdings, Inc. The consent order

settles charges that the acquisition would have eliminated competition in the market for

anhydrous ammonia fertilizer, a product that farmers rely on to grow their crops.

In Danaher Corp./MDS, 40 the Commission challenged Danaher’s proposed acquisition of

MDS Analytical Technologies, requiring that MDS divest assets related to its laser

microdissection business. Danaher and MDS were two of only four firms in North America

selling microdissection devices – a key tool for scientific research. The settlement is designed to

preserve competition in this market.

In PepsiCo Inc./Pepsi Bottling, 41 the Commission required that carbonated soft drink

company PepsiCo, Inc. restrict its access to confidential competitive information of rival Dr

Pepper Snapple Group as a condition for proceeding with PepsiCo’s proposed $7.8 billion

acquisition of its two largest bottlers and distributors, which also distribute Dr Pepper Snapple

Group carbonated soft drinks. Under the order, PepsiCo is required to set up a firewall to ensure

In the matter of Panasonic/Sanyo, Docket No. C-4274 (proposed order issued Nov. 24, 2009).

In the matter of SCI/Palm Mortuary, Docket No. C-4275 (proposed order issued Nov. 25, 2009).

In the matter of Watson Pharmaceuticals/Arrow Group, Docket No. C-4276 (proposed order issued Dec.

2, 2009).

In the matter of Agrium/CF Industries, Docket No. C-4277 (proposed order issued Dec. 23, 2009).

In the matter of Danaher Corp/MDS, Docket No. C-4283 (proposed order issued Jan. 27, 2010).

In the matter of PepsiCo Inc./Pepsi Bottling, Docket No. C-4301 (proposed order issued Feb. 26, 2010).

that its ownership of these bottlers does not give PepsiCo employees access to commercially

sensitive and confidential Dr Pepper Snapple marketing and brand plans.

In SCI/Keystone North America, 42 Service Corporation International (SCI), the nation’s

largest provider of funeral and cemetery services, settled Commission charges that its proposed

acquisition of Keystone North America Inc., the fifth-largest funeral and cemetery services

provider in North America, would have raised antitrust concerns in the markets for both funeral

services and cemetery services. The order requires SCI to sell 22 funeral homes and four

cemeteries in 19 local markets to ensure competition is preserved following its acquisition of

Keystone.

In Varian, Inc./Agilent, Inc., 43 Agilent Technologies, Inc. and Varian, Inc., two leading

global suppliers of high-performance scientific measurement instruments, agreed to sell three of

their product lines in order to proceed with their proposed $1.5 billion merger. According to the

Commission’s complaint, Agilent’s acquisition of Varian would have violated U.S. antitrust laws

by reducing competition for three types of scientific measurement instruments because the

companies currently compete with one another in those markets. To resolve these competitive

concerns, the parties agreed to an order requiring them to sell assets related to the manufacture

and sale of Micro Gas Chromatography instruments, Triple Quadrupole Gas ChromatographyMass Spectrometry instruments, and Inductively Coupled Plasma-Mass Spectrometry

instruments.

In Flying J/Pilot Corp., 44 the Commission required Pilot Corporation, owner of the

largest travel center network in the U.S., to sell 26 travel centers as part of a settlement to replace

the competition that would have been lost because of Pilot’s proposed $1.8 billion acquisition of

Flying J Inc.’s travel center network. Pilot agreed to sell the travel centers, which provide diesel,

food, parking, and other amenities for truckers, to Love’s Travel Stops and Country Stores.

According to the Commission’s complaint, the deal between Pilot and Flying J would have

reduced competition for certain long-haul trucking fleets for which Pilot and Flying J were the

first and second best choices to fulfill their diesel needs.

In AEA Investors/D.A. Stuart GmbH, 45 Houghton International, Inc., the leading North

American provider of hot rolling oil used to process aluminum, agreed to sell some of the assets

it acquired in 2008 through its purchase of D.A. Stuart GmbH, a transaction that included

multiple product markets. The Commission’s investigation found that Houghton’s acquisition of

D.A. Stuart GmbH combined the two largest suppliers of aluminum hot rolling oil (AHRO) in

North America, giving the combined firm control of almost 75% of the North American market.

The Commission’s complaint alleges that through its purchase of Stuart, Houghton could

unilaterally raise AHRO prices to U.S. consumers. The complaint also alleged that the

acquisition could decrease innovation for this vital input into aluminum manufacturing. Under

the order settling the Commission’s charges, Houghton will sell Stuart’s AHRO business to

Quaker Chemical Corporation.

In the matter of SCI/Keystone North America, Docket No. C-4284 (proposed order issued Mar. 26,

2010).

In the matter of Varian, Inc./Agilent, Inc., Docket No. C-4292 (proposed order issued May 14, 2010).

In the matter of Flying J/Pilot Corp., Docket No. C-4293 (proposed order issued Jun. 30, 2010).

In the matter of AEA Investors/ D.A. Stuart GmbH, Docket No. C-4297 (proposed order issued Jul. 14,

2010).

In Fidelity/LandAmerica, 46 to settle Commission charges that its 2008 acquisition of

three LandAmerica Financial, Inc. subsidiaries was anticompetitive, Fidelity National Financial,

Inc. agreed to sell several title plants and related assets in the Portland, Oregon, and Detroit,

Michigan, metropolitan areas and in four other Oregon counties. Fidelity sells title insurance and

provides title information services. Land America also sold title insurance and services. Title

plants are databases used by abstractors, title insurers, title insurance agents, and others to

determine the ownership of, and interests in, real property in connection with underwriting and

issuance of title insurance polices and for other purposes. According to the Commission,

Fidelity’s acquisition of the LandAmerica assets was anticompetitive in several local markets for

the provision of title insurance information services by title plants. The consent will restore

independent title plant owners and competition in these markets.

In NuFarm/A.H. Marks Holdings, Ltd., 47 Australian chemical company Nufarm Limited

agreed to sell certain assets and modify some of its business agreements to settle charges that its

2008 acquisition of rival A.H. Marks Holding Limited hurt competition in the U.S. market for

three herbicides that are relied upon by farmers, landscapers, and consumers. Under the

settlement, Nufarm agreed to sell rights and assets associated with two of the herbicides to

competitors and to modify agreements with two other companies to allow them to fully compete

in the market for the other herbicide. Nufarm’s acquisition of United Kingdom-based A.H.

Marks gave Nufarm monopolies in the U.S. markets for two herbicides called MCPA and

MCPP-P, which also are known as phenoxy herbicides. The transaction also left only two

competitors in the market for a third phenoxy herbicide, called 2,4DB. The three herbicides are

widely used in the turf, lawn care, and agriculture industries to eliminate certain weeds safely

and inexpensively.

In Tops/Penn Traffic, 48 the Commission reached a settlement agreement with Tops

Markets LLC that protects consumers from the potential anticompetitive effects of Tops’ recent

acquisition of the bankrupt Penn Traffic Company supermarket chain. To settle Commission

charges that the acquisition was anticompetitive in several areas of New York and Pennsylvania,

Tops agreed to sell seven Penn Traffic supermarkets to Commission-approved buyers. Because

the Commission adopted a flexible process for reviewing the potential anticompetitive effects of

the acquisition, none of the 79 Penn Traffic stores was liquidated in the bankruptcy proceeding.

In Nestle/Novartis, 49 to settle Commission charges that its proposed acquisition of Alcon,

Inc. from Nestle, S.A. would be anticompetitive, Novartis AG agreed to sell to a Commissionapproved buyer the rights and assets related to an injectable miotic, an eye care drug used in

cataract surgery to constrict the pupil to help check for ruptures in the eye. Novartis and Alcon

are the only two U.S. providers of injectable miotics, and the Commission alleged that the

acquisition would have created a monopoly in injectable miotics. The settlement requires

Novartis to sell its drug Miochol-E to Bausch & Lomb, Inc.

In Airgas/Air Products and Chemicals, 50 industrial gas supplier Air Products and

Chemicals, Inc. reached an agreement with the Commission requiring the company to sell certain

In the matter of Fidelity/LandAmerica, Docket No. C-4300 (proposed order issued Jul. 16, 2010).

In the matter of NuFarm/A.H. Marks Holdings, Ltd. Docket No. C-4298 (proposed order issued Jul. 28,

2010).

In the matter of Tops/Penn Traffic, Docket No. C-4295 (proposed order issued Aug. 4, 2010).

In the matter of Nestle/Novartis, Docket No. C-4296 (proposed order issued Aug. 16, 2010).

In the matter of Airgas/Air Products and Chemicals, Docket No. C-4299 (proposed order issued Sep. 9,

2010).

liquid gas assets to resolve Commission charges that Air Products’ proposed acquisition of

Airgas, a competing industrial gas supplier, would be anticompetitive. The Commission alleged

that the takeover would have harmed competition in five regional markets for bulk liquid oxygen

and bulk liquid nitrogen, which are used in a range of applications from hospital patient care to

the manufacture of frozen foods. The Commission order would restore this competition.

In Coca-Cola/Coca-Cola Enterprise, 51 The Coca-Cola Company agreed to restrict its

access to confidential competitive business information of rival Dr Pepper Snapple Group as a

condition for completing Coca-Cola’s proposed $12.3 billion acquisition of its largest North

American bottler, which also distributes Dr Pepper Snapple carbonated soft drinks. Under the

settlement, Coca-Cola will set up a “firewall” to ensure that its ownership of the bottling

company does not give certain Coca-Cola employees access to commercially sensitive

confidential Dr Pepper Snapple marketing information and brand plans. In a complaint filed

with the settlement, the Commission charged that access to this information likely would have

harmed competition in the U.S. markets for carbonated soft drinks.

ONGOING REASSESSMENT OF THE EFFECTS OF THE PREMERGER

NOTIFICATION PROGRAM

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

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

indicated in past annual reports, the HSR program ensures that virtually all relatively large

mergers or acquisitions that affect consumers in the United States will be reviewed by the

antitrust agencies prior to consummation. The agencies generally have the opportunity to

challenge unlawful transactions before they occur, thus avoiding the problem of constructing

effective post-acquisition relief. As a result, the HSR Act is doing what Congress intended,

giving the government the opportunity to investigate and challenge those relatively large mergers

that are likely to harm consumers before injury can arise. Prior to the premerger notification

program, businesses could, and frequently did, consummate transactions that raised significant

antitrust concerns before the antitrust agencies had the opportunity to consider adequately their

competitive effects. The enforcement agencies were forced to pursue lengthy post-acquisition

litigation, during the course of which harm from the consummated transaction continued (and

afterwards as well, where achievement of effective post-acquisition relief was not practicable).

Because the premerger notification program requires reporting before consummation, this

problem has been significantly reduced.

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

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

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

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

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

substantially lessen competition.

In August 2010, the Commission proposed giving the HSR form its most extensive

overhaul since its creation. The proposed form changes are an attempt to provide the agencies

In the matter of Coca-Cola/Coca-Cola Enterprise, Docket No. C-4305 (proposed order issued Sep. 27,

2010).

with some additional information that would be useful in making an initial evaluation of whether

a transaction may raise competitive issues warranting investigation, while at the same time

eliminating the need to provide certain information that the agencies have found not as helpful as

originally anticipated. The public comment period ended on October 18, and the agencies are

considering those comments before implementing HSR form changes. 52

75 Fed. Reg. 57110 (September 17, 2010).

LIST OF APPENDICES

Appendix A -

Summary of Transactions, Fiscal Years 2001 - 2010

Appendix B -

Number of Transactions reported and Filings Received by Month for

Fiscal Years 2001 - 2010

LIST OF EXHIBITS

Exhibit A -

Statistical Tables for Fiscal year 2010, Presenting Data Profiling

Hart-Scott-Rodino Premerger Notification Filings and Enforcement

Interests

APPENDIX A

SUMMARY OF TRANSACTIONS

FISCAL YEARS 2001 – 2010

APPENDIX A

SUMMARY OF TRANSACTION BY YEAR

2001

2002

2008

2009

2010

Transactions Reported

2,376

1,187 1,014 1,428 1,675 1,768 2,201 1,726

716

1,166

Filings Received1

4,800

2,369 2,001 2,825 3,287 3,510 4,378 3,455

1411

2,318

2,237

1,142

968

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

684

1,128

1.2%

2.4%

1.5%

1.6%

1.5%

1.3%

2.2%

1.8%

1.9%

2.1%

1.1%

1.6%

1.0%

1.5%

1.2%

2.3%

2,063

1,042

700

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

575

953

Granted5

1,603

793

606

943

997

1,098 1,402 1,021

396

704

Not Granted5

460

249

298

388

370

179

249

Adjusted Transactions In Which A

Second Request Could Have Been

Issued2

Investigations in Which Second Requests

Were Issued

FTC3

Percent4

DOJ3

Percent4

Transactions Involving a Request For

Early Termination5

2003

2004

2005

2006

2007

438

364

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

some prior Annual reports to account for a coding error.

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

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

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

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

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

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

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

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

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

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

component values due to rounding.

These statistics are based on the date of the HSR filing and not the date action was taken on the request.

APPENDIX B

NUMBER OF TRANSACTIONS REPORTED

AND

FILINGS RECEIVED BY MONTH

FOR

FISCAL YEARS 2001 - 2010

APPENDIX B

TABLE 1. NUMBER OF TRANSACTIONS REPORTED BY MONTH FOR

FISCAL YEARS 2001 - 2010

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

October

360

139

130

201

158

November

451

105

104

127

160

148

189

191

135

December

345

143

126

137

151

172

January

245

111

138

142

143

158

February

109

124

157

119

March

120

109

137

121

150

194

131

116

April

127

121

125

156

128

May

153

111

125

171

158

250

150

108

June

190

117

153

172

202

146

108

July

121

123

118

141

219

128

August

163

134

170

186

200

126

120

September

108

159

155

139

119

120

TOTAL

2,376

1,187

1,014

1,428

1,675

1,768

2,201

1,726

716

1,166

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

APPENDIX B

TABLE 2. NUMBER OF FILINGS RECEIVED1 BY MONTH FOR

FISCAL YEARS 2001 - 2010

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

October

751

190

148

185

277

261

401

319

185

146

November

920

211

206

254

324

311

376

380

165

242

December

686

183

150

280

238

260

294

343

177

January

499

224

179

161

259

279

288

316

126

February

144

174

146

207

201

257

317

246

116

March

243

230

144

277

239

309

381

242

232

April

188

203

182

245

242

270

312

272

119

182

May

296

212

168

258

337

300

481

294

114

216

June

378

170

158

241

297

346

403

293

213

July

182

230

170

234

236

255

441

259

121

187

August

332

191

164

270

328

367

396

251

149

238

September

181

151

186

213

309

295

288

240

159

243

TOTAL

4,800

2,369

2,001

2,825

3,287

3,510

4,378

3,455

1,411

2,318

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

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

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

EXHIBIT A

STATISTICAL TABLES

FOR

FISCAL YEAR 2010

DATA PROFILING HART-SCOTT-RODINO PREMERGER

NOTIFICATION FILINGS AND ENFORCEMENT INTERESTS

TABLE I

FISCAL YEAR 2010 1

ACQUISITIONS BY SIZE OF TRANSACTION (BY SIZE RANGE)

HSR TRANSACTIONS

TRANSACTION RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

SECOND REQUEST INVESTIGATIONS 3

PERCENT OF

TRANSACTION RANGE

GROUP

NUMBER

PERCENT OF

TRANSACTION RANGE

GROUP

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

Below 50M 5

0.1%

0.0%

50M - 100M

215

19.1%

8.8%

6.5%

15.3%

1.4%

2.8%

100M - 150M

208

18.4%

8.7%

5.8%

14.4%

0.5%

2.4%

2.9%

150M - 200M

104

9.2%

8.7%

1.0%

9.6%

0.0%

200M - 300M

144

12.8%

17.4%

5.6%

22.9%

4.2%

1.4%

5.6%

300M - 500M

146

12.9%

17.1%

5.5%

22.6%

1.4%

3.4%

4.8%

500M - 1000M

186

16.5%

12.9%

7.5%

20.4%

1.1%

2.2%

3.2%

Over 1000M

124

11.0%

23.4%

12.9%

36.3%

4.8%

5.6%

10.5%

ALL TRANSACTIONS

1,128

100.0%

149

13.2%

6.5%

19.7%

1.8%

2.3%

4.1%

TABLE II

FISCAL YEAR 2010 1

ACQUISITIONS BY SIZE OF TRANSACTION (CUMULATIVE)

HSR TRANSACTIONS

TRANSACTION RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

SECOND REQUEST INVESTIGATIONS 3

PERCENTAGE OF

TOTAL NUMBER OF

CLEARANCES

NUMBER

PERCENTAGE OF

TOTAL NUMBER OF

SECOND REQUESTS

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

LESS THAN 50 5

0.1%

0.0%

LESS THAN 100

216

19.1%

8.6%

6.3%

14.9%

6.5%

13.0%

LESS THAN 150

424

37.6%

16.7%

11.7%

28.4%

8.7%

17.4%

26.1%

LESS THAN 200

528

46.8%

20.7%

12.2%

32.9%

8.7%

17.4%

26.1%

LESS THAN 300

672

59.6%

32.0%

15.8%

47.7%

21.7%

43.5%

LESS THAN 500

818

72.5%

43.2%

19.4%

62.6%

26.1%

32.6%

58.7%

LESS THAN 1000

1,002

88.8%

120

54.1%

25.2%

79.3%

30.4%

41.3%

71.7%

ALL TRANSACTIONS

1,128

149

67.1%

32.9%

100.0%

43.5%

56.5%

100.0%

TABLE III

FISCAL YEAR 2010 1

TRANSACTIONS INVOLVING THE GRANTING OF CLEARANCE BY AGENCY

CLEARANCE GRANTED AS A PERCENTAGE OF:

CLEARANCES

GRANTED TO

AGENCY

TRANSACTION RANGE

($MILLIONS)

TRANSACTIONS IN EACH

TRANSACTION RANGE

GROUP

TOTAL NUMBER

OF CLEARANCES

PER AGENCY

TOTAL NUMBER OF

CLEARANCES

GRANTED

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

Below 50M 5

0.0%

50M - 100M

8.8%

6.5%

15.3%

12.8%

19.2%

8.6%

6.3%

14.9%

100M - 150M

8.7%

5.8%

14.4%

12.1%

16.4%

8.1%

5.4%

13.5%

150M - 200M

8.7%

1.0%

9.6%

6.0%

1.4%

4.1%

0.5%

4.5%

200M - 300M

17.4%

5.6%

22.9%

16.8%

11.0%

11.3%

3.6%

14.9%

300M - 500M

17.1%

5.5%

22.6%

16.8%

11.0%

11.3%

3.6%

14.9%

500M - 1000M

12.9%

7.5%

20.4%

16.1%

19.2%

10.8%

6.3%

17.1%

Over 1000M

23.4%

12.9%

36.3%

19.5%

21.9%

13.1%

7.2%

20.3%

ALL TRANSACTIONS

149

222

13.2%

6.5%

19.7%

100.0%

67.1%

32.9%

100.0%

TABLE IV

FISCAL YEAR 2010 1

TRANSACTIONS IN WHICH SECOND REQUESTS WERE ISSUED

TRANSACTION RANGE

($MILLIONS)

INVESTIGATIONS IN

WHICH SECOND

REQUEST WERE

ISSUED 3

SECOND REQUESTS ISSUED AS A PERCENTAGE OF:

TOTAL NUMBER OF

TRANSACTIONS

TRANSACTIONS IN

EACH TRANSACTION

RANGE GROUP

TOTAL NUMBER OF

SECOND REQUEST

INVESTIGATIONS

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

Below 50M 5

0.0%

50M - 100M

0.3%

0.5%

1.4%

2.8%

6.5%

13.0%

100M - 150M

0.1%

0.4%

0.5%

2.4%

2.9%

2.2%

10.9%

13.0%

150M - 200M

0.0%

200M - 300M

0.5%

0.2%

0.7%

4.2%

1.4%

5.6%

13.0%

4.3%

17.4%

300M - 500M

0.2%

0.4%

0.6%

1.4%

3.4%

4.8%

4.3%

10.9%

15.2%

500M - 1000M

0.2%

0.4%

0.5%

1.1%

2.2%

3.2%

4.3%

8.7%

13.0%

Over 1000M

0.5%

0.6%

1.2%

4.8%

5.6%

10.5%

13.0%

15.2%

28.3%

ALL TRANSACTIONS

1.8%

2.3%

4.1%

1.8%

2.3%

4.1%

43.5%

56.5%

100.0%

TABLE V

FISCAL YEAR 2010 1

ACQUISITIONS BY REPORTING THRESHOLD

HSR TRANSACTIONS

THRESHOLD 6

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

SECOND REQUEST INVESTIGATIONS 3

PERCENT OF

THRESHOLD GROUP

NUMBER

PERCENT OF

THRESHOLD GROUP

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

$50M (as adjusted)

5.9%

3.0%

6.0%

0.0%

3.0%

$100M (as adjusted)

6.0%

5.9%

1.5%

7.4%

0.0%

2.9%

$500M (as adjusted)

1.9%

4.8%

0.0%

4.8%

0.0%

25%

0.3%

0.0%

50%

589

52.2%

16.5%

7.5%

23.9%

2.4%

2.7%

5.1%

ASSETS ONLY

380

33.7%

11.8%

6.8%

18.7%

1.6%

3.2%

ALL TRANSACTIONS

1,128

100.0%

149

13.2%

6.5%

19.7%

1.8%

2.3%

4.1%

TABLE VI

FISCAL YEAR 2010 1

TRANSACTION BY ASSETS OF ACQUIRING PERSON

HSR TRANSACTIONS

ASSET RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

PERCENT OF

ASSET RANGE

GROUP

SECOND REQUEST INVESTIGATIONS 3

PERCENT OF

ASSET RANGE

GROUP

NUMBER

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

Below 50M

6.1%

2.9%

5.8%

0.0%

2.9%

50M - 100M

1.7%

5.3%

0.0%

5.3%

0.0%

100M - 150M

2.1%

0.0%

4.2%

0.0%

150M - 200M

1.6%

22.2%

0.0%

22.2%

0.0%

200M - 300M

3.7%

2.4%

4.8%

7.1%

0.0%

300M - 500M

5.2%

8.5%

10.2%

18.6%

1.7%

3.4%

500M - 1000M

127

11.3%

10.2%

4.7%

15.0%

1.6%

3.1%

4.7%

Over 1000M

770

68.3%

123

16.0%

7.3%

23.2%

2.2%

2.5%

4.7%

ALL TRANSACTIONS

1,128

100.0%

149

13.2%

6.5%

19.7%

1.8%

2.3%

4.1%

TABLE VII

FISCAL YEAR 2010 1

TRANSACTION BY SALES OF ACQUIRING PERSON

HSR TRANSACTIONS

SALES RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

PERCENT OF

SALES RANGE

GROUP

SECOND REQUEST INVESTIGATIONS 3

NUMBER

PERCENT OF

SALES RANGE

GROUP

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

Below 50M

6.6%

1.4%

4.1%

5.4%

0.0%

1.4%

50M - 100M

1.7%

5.3%

10.5%

0.0%

100M - 150M

3.2%

5.6%

2.8%

8.3%

0.0%

150M - 200M

2.6%

3.4%

0.0%

3.4%

0.0%

200M - 300M

4.3%

8.2%

4.1%

12.2%

0.0%

2.0%

300M - 500M

5.9%

3.0%

9.0%

11.9%

1.5%

3.0%

500M - 1000M

110

9.8%

12.7%

5.5%

18.2%

0.9%

4.5%

5.5%

Over 1000M

681

60.4%

122

17.9%

7.6%

25.6%

2.6%

2.5%

5.1%

Sales Not Available 7

5.6%

3.2%

6.3%

0.0%

1.6%

ALL TRANSACTIONS

1,128

100.0%

149

13.2%

6.5%

19.7%

1.8%

2.3%

4.1%

TABLE VIII

FISCAL YEAR 2010 1

TRANSACTION BY ASSETS OF ACQUIRED ENTITIES8

HSR TRANSACTIONS

ASSET RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

PERCENT OF

ASSET RANGE

GROUP

SECOND REQUEST INVESTIGATIONS 3

PERCENT OF

ASSET RANGE

GROUP

NUMBER

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

Below 50M

176

15.6%

14.2%

5.1%

19.3%

1.1%

0.6%

1.7%

50M - 100M

152

13.5%

11.2%

8.6%

19.7%

2.0%

1.3%

3.3%

100M - 150M

117

10.4%

13.7%

8.5%

22.2%

1.7%

5.1%

6.8%

150M - 200M

6.6%

9.5%

1.4%

10.8%

0.0%

200M - 300M

7.4%

10.7%

7.1%

17.9%

4.8%

0.0%

4.8%

300M - 500M

7.4%

13.1%

4.8%

17.9%

3.6%

6.0%

9.5%

500M - 1000M

117

10.4%

12.8%

11.1%

23.9%

0.9%

2.6%

3.4%

Over 1000M

205

18.2%

16.6%

5.4%

22.0%

2.4%

3.4%

5.9%

Assets Not Available 8

119

10.5%

12.6%

5.0%

17.6%

0.0%

1.7%

ALL TRANSACTIONS

1,128

100.0%

149

13.2%

6.5%

19.7%

1.8%

2.3%

4.1%

TABLE IX

FISCAL YEAR 2010 1

TRANSACTION BY SALES OF ACQUIRED ENTITIES 9

HSR TRANSACTIONS

SALES RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

PERCENT OF

SALES RANGE

GROUP

SECOND REQUEST INVESTIGATIONS 3

PERCENT OF

SALES RANGE

GROUP

NUMBER

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

Below 50M

181

16.0%

14.4%

4.4%

18.8%

0.6%

1.1%

50M - 100M

177

15.7%

11.3%

4.5%

15.8%

1.7%

1.1%

2.8%

100M - 150M

108

9.6%

14.8%

10.2%

25.0%

2.8%

3.7%

6.5%

150M - 200M

8.4%

16.8%

0.0%

3.2%

200M - 300M

100

8.9%

10.0%

7.0%

17.0%

1.0%

2.0%

300M - 500M

8.8%

10.1%

5.1%

15.2%

1.0%

2.0%

3.0%

500M - 1000M

131

11.6%

10.7%

9.2%

19.8%

0.8%

2.3%

3.1%

Over 1000M

185

16.4%

19.5%

6.5%

25.9%

2.7%

5.4%

Sales not Available 10

4.6%

17.3%

3.8%

21.2%

9.6%

19.2%

ALL TRANSACTIONS

1,128

100.0%

149

13.2%

6.5%

19.7%

1.8%

2.3%

4.1%

TABLE X

FISCAL YEAR 2010 1

INDUSTRY GROUP OF ACQUIRING PERSON

3 DIGIT

NAICS

CODE 11

000 13

112

114

211

212

213

221

237

238

311

312

314

316

321

322

323

324

325

326

327

331

INDUSTRY DESCRIPTION

Not Available

Animal Production

Fishing, Hunting and Trapping

Oil and Gas Extraction

Mining (except Oil and Gas)

Support Activities for Mining

Utilities

Heavy and Civil Engineering Construction

Specialty Trade Contractors

Food and Kindred Products

Beverage and Tobacco Product Manufacturing

Textile Products

Leather and Allied Product Manufacturing

Wood Product Manufacturing

Paper Manufacturing

Printing and Related Support Actitivies

Petroleum and Coal Products Manufacturing

Chemical Manufacturing

Plastics and Rubber Manfuacturing

Nonmetallic Mineral Product Manufacturing

Primary Metal Manufacturing

NUMBER

PERCENT

OF TOTAL

CHANGE

FROM FY

2009 12

CLEARANCE

GRANTED TO FTC

OR DOJ

SECOND REQUEST

INVESTIGATIONS 3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

6.8%

-1.2%

0.1%

0.0%

0.1%

1.9%

0.4%

-0.3%

0.5%

-0.4%

3.5%

0.9%

1.2%

0.6%

0.3%

-0.4%

3.1%

1.6%

0.3%

-0.2%

0.2%

0.1%

0.8%

0.0%

0.3%

0.0%

0.6%

0.2%

5.9%

0.7%

1.1%

0.1%

0.4%

-0.6%

0.6%

-1.1%

TABLE X

FISCAL YEAR 2010 1

INDUSTRY GROUP OF ACQUIRING PERSON

3 DIGIT

NAICS

CODE 11

332

333

334

335

336

339

422

423

424

441

444

445

446

447

448

453

454

481

483

484

486

INDUSTRY DESCRIPTION

Fabricated Metal Product Manufacturing

Machinery Manufacturing

Computer and Electronic Product Manufacturing

Electrical Equipment, Applicance, and Component

Manufacturing

Transportation Equipment Manufacturing

Miscellaneous Manufacturing

Wholesale Trade, Nondurable Goods

Merchant Wholesalers, Durable Goods

Merchant Wholesales, Nondurable Goods

Motor Vehicle and Parts Dealers

Electronics and Appliance Stores

Food and Beverage Stores

Health and Personal Care Stores

Gasoline Stations

Clothing and Clothing Accessories Stores

Miscellaneous Store Retailers

Nonstore Retailers

Air Transportation

Water Transportation

Truck Transportation

Pipeline Transportation

NUMBER

PERCENT

OF TOTAL

CHANGE

FROM FY

2009 12

CLEARANCE

GRANTED TO FTC

OR DOJ

SECOND REQUEST

INVESTIGATIONS 3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

1.5%

-0.1%

1.4%

-1.3%

4.2%

1.0%

0.7%

-0.3%

3.1%

1.4%

1.6%

0.6%

0.1%

5.6%

-0.9%

5.7%

1.5%

0.2%

0.0%

0.3%

0.0%

0.5%

0.2%

0.6%

0.3%

0.1%

0.4%

0.2%

0.4%

0.3%

1.2%

0.9%

0.4%

-0.1%

0.1%

-0.1%

0.1%

-0.1%

0.5%

0.2%

TABLE X

FISCAL YEAR 2010 1

INDUSTRY GROUP OF ACQUIRING PERSON

3 DIGIT

NAICS

CODE 11

488

493

511

512

514

515

516

517

518

519

522

523

524

525

531

532

533

541

551

561

562

INDUSTRY DESCRIPTION

Support Actitivies for Transportation

Warehousing and Storage

Publishing Industries (except Internet)

Motion Pictures and Sound Recording Industries

Information Services and Data Processing Services

Broadcasting (except Internet)

Internet Publishing and Broadcasting

Telecommunications

Internet Service Providers, Web Search Portals, and Data

Processing Services

Other Information Services

Credit Intermediation and Related Activities

Securitites, Commodity Contracts, and Other Financial

Investments and Related Activities

Insurance Carriers and Related Actitivities

Funds, Trusts, and Other Financial Vehicles

Real Estate

Rental and Leasing Services

Lessors of Nonfinancial Intangible Assets (except

Copyrighted Works)

Professional, Scientific, and Technical Services

Management Companies and Enterprises

Administrative and Support Services

Waste Management and Remediation Services

NUMBER

PERCENT

OF TOTAL

CHANGE

FROM FY

2009 12

CLEARANCE

GRANTED TO FTC

OR DOJ

SECOND REQUEST

INVESTIGATIONS 3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.2%

-0.2%

0.2%

-0.1%

3.5%

-0.1%

0.3%

-0.2%

0.1%

0.9%

0.4%

-0.1%

2.8%

0.3%

1.4%

0.8%

0.1%

-0.1%

2.7%

0.2%

7.8%

-3.4%

3.5%

-0.4%

2.2%

0.2%

0.1%

-0.6%

0.8%

0.0%

0.4%

0.0%

5.7%

0.4%

0.5%

0.2%

2.4%

0.4%

0.1%

-0.6%

TABLE X

FISCAL YEAR 2010 1

INDUSTRY GROUP OF ACQUIRING PERSON

3 DIGIT

NAICS

CODE 11

611

621

622

623

624

711

713

721

722

811

812

813

924

INDUSTRY DESCRIPTION

Educational Services

Ambulatory Health Care Services

Hospitals

Nursing Care Facilities

Social Assistance

Performing Arts, Spector Sports, and Related Industries

Amusement, Gambling, and Recreation Industries

Accommodation

Food Services and Drinking Places

Repairs and Maintenance

Personal and Laundry Services

Religious, Grantmaking, Civic, Professional, and Similar

Organizations

Administration of Environmental Quality Programs

NUMBER

PERCENT

OF TOTAL

CHANGE

FROM FY

2009 12

CLEARANCE

GRANTED TO FTC

OR DOJ

SECOND REQUEST

INVESTIGATIONS 3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

0.3%

0.0%

1.2%

0.6%

2.5%

1.3%

0.2%

0.1%

0.3%

-0.3%

0.4%

0.1%

0.3%

-0.2%

0.2%

0.1%

0.5%

-0.2%

0.3%

0.1%

0.4%

0.1%

0.2%

0.4%

0.3%

1,128

100.0%

149

222

TABLE XI

FISCAL YEAR 2010

INDUSTRY GROUP OF ACQUIRED ENTITIES

3 DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

CHANGE

PERCENT

FROM FY

OF TOTAL

2009

CLEARANCE

GRANTED TO FTC

OR DOJ

NUMBER OF

3 DIGIT

SECOND REQUEST 3

INTRAINVESTIGATIONS

INDUSTRY

TRANSACTIONS 14

FTC

DOJ TOTAL

FTC

DOJ

TOTAL

0.1%

2.6%

1.7%

0.6%

-0.5%

Support Activities for Mining

0.8%

-0.1%

221

Utilities

4.0%

-0.3%

236

Construction of Buildings

0.1%

-0.2%

Heavy and Civil Engineering Construction

1.4%

0.5%

Specialty Trade Contractors

0.7%

0.3%

Food and Kindred Products

4.1%

1.9%

Beverage and Tobacco Product Manufacturing

0.4%

-0.4%

Leather and Allied Product Manufacturing

0.1%

321

Wood Product Manufacturing

0.2%

0.0%

322

Paper Manufacturing

0.5%

0.4%

Printing and Related Support Actitivies

0.4%

0.2%

Petroleum and Coal Products Manufacturing

0.4%

-0.1%

Chemical Manufacturing

4.3%

-1.9%

Plastics and Rubber Manfuacturing

1.5%

-0.2%

Nonmetallic Mineral Product Manufacturing

0.3%

0.0%

331

Primary Metal Manufacturing

0.8%

0.5%

332

Fabricated Metal Product Manufacturing

1.4%

0.4%

Machinery Manufacturing

1.2%

-0.8%

Not Available

5.2%

Oil and Gas Extraction

Mining (except Oil and Gas)

213

000 13

211

212

237

238

311

312

316

323

324

325

326

327

333

TABLE XI

FISCAL YEAR 2010

INDUSTRY GROUP OF ACQUIRED ENTITIES

3 DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

CHANGE

PERCENT

FROM FY

OF TOTAL

2009

CLEARANCE

GRANTED TO FTC

OR DOJ

NUMBER OF

3 DIGIT

SECOND REQUEST 3

INTRAINVESTIGATIONS

INDUSTRY

TRANSACTIONS 14

FTC

DOJ TOTAL

FTC

DOJ

TOTAL

1.0%

0.9%

0.4%

1.8%

-1.0%

Furniture and Related Product Manufacturing

0.3%

0.0%

339

Miscellaneous Manufacturing

2.2%

1.0%

423

Merchant Wholesalers, Durable Goods

6.4%

1.0%

Merchant Wholesales, Nondurable Goods

5.2%

-0.3%

Wholesale Electric Markets and Agent and Brokers

0.2%

Motor Vehicle and Parts Dealers

0.4%

0.2%

Miscellaneous Repair Services

0.1%

Electronics and Appliance Stores

0.1%

445

Food and Beverage Stores

0.6%

-0.5%

446

Health and Personal Care Stores

0.3%

Gasoline Stations

0.4%

-0.1%

Clothing and Clothing Accessories Stores

0.3%

-0.6%

Sporting Goods, Hobby, Book, and Music Stores

0.2%

-0.6%

General Merchandise Stores

0.2%

Miscellaneous Store Retailers

0.3%

454

Nonstore Retailers

1.1%

0.3%

481

Air Transportation

0.5%

0.1%

Railroad Transportation

0.1%

Computer and Electronic Product Manufacturing

4.1%

Electrical Equipment, Applicance, and Component

Manufacturing

Transportation Equipment Manufacturing

337

334

335

336

424

425

441

443

444

447

448

451

452

453

482

TABLE XI

FISCAL YEAR 2010

INDUSTRY GROUP OF ACQUIRED ENTITIES

3 DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

CHANGE

PERCENT

FROM FY

OF TOTAL

2009

CLEARANCE

GRANTED TO FTC

OR DOJ

NUMBER OF

3 DIGIT

SECOND REQUEST 3

INTRAINVESTIGATIONS

INDUSTRY

TRANSACTIONS 14

FTC

DOJ TOTAL

FTC

DOJ

TOTAL

-0.2%

0.1%

-0.1%

1.0%

0.4%

Support Actitivies for Transportation

0.3%

492

Couriers

0.2%

493

Warehousing and Storage

0.1%

-0.1%

Miscellaneous Durable Goods

0.1%

Publishing Industries (except Internet)

4.5%

0.4%

Motion Pictures and Sound Recording Industries

0.6%

-0.1%

Information Services and Data Processing Services

0.1%

Broadcasting (except Internet)

0.4%

-1.0%

516

Internet Publishing and Broadcasting

0.5%

0.2%

517

Telecommunications

2.2%

-1.1%

Internet Service Providers, Web Search Portals, and Data

Processing Services

Credit Intermediation and Related Activities

2.7%

1.5%

2.3%

-1.6%

Securitites, Commodity Contracts, and Other Financial

Investments and Related Activities

Insurance Carriers and Related Actitivities

3.0%

-0.8%

3.6%

-1.2%

Funds, Trusts, and Other Financial Vehicles

0.3%

0.0%

531

Real Estate

0.2%

532

Rental and Leasing Services

0.5%

-1.1%

Lessors of Nonfinancial Intangible Assets (except Copyrighted

Works)

0.4%

0.0%

Water Transportation

0.1%

Truck Transportation

Pipeline Transportation

488

483

484

486

509

511

512

514

515

518

522

523

524

525

533

TABLE XI

FISCAL YEAR 2010

INDUSTRY GROUP OF ACQUIRED ENTITIES

3 DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

CHANGE

PERCENT

FROM FY

OF TOTAL

2009

CLEARANCE

GRANTED TO FTC

OR DOJ

NUMBER OF

3 DIGIT

SECOND REQUEST 3

INTRAINVESTIGATIONS

INDUSTRY

TRANSACTIONS 14

FTC

DOJ TOTAL

FTC

DOJ

TOTAL

0.1%

2.7%

1.0%

Waste Management and Remediation Services

0.5%

-0.2%

611

Educational Services

1.2%

0.8%

621

Ambulatory Health Care Services

2.0%

1.0%

Hospitals

2.8%

0.4%

Nursing Care Facilities

0.2%

Social Assistance

0.1%

Performing Arts, Spector Sports, and Related Industries

0.5%

0.1%

Amusement, Gambling, and Recreation Industries

0.7%

0.3%

721

Accommodation

0.4%

0.2%

722

Food Services and Drinking Places

0.9%

-0.6%

Repairs and Maintenance

0.4%

0.3%

Personal and Laundry Services

0.3%

-0.2%

1,128

100.0%

149

222

355

Professional, Scientific, and Technical Services

7.4%

Management Companies and Enterprises

Administrative and Support Services

562

541

551

561

622

623

624

711

713

811

812

1 Fiscal year 2010 figures include transactions reported between October 1, 2009 and September 30, 2010.

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

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

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

4 During fiscal year 2010, 1166 transactions were reported under the HSR Premerger Notification program. The smaller number, 1128, reflects the adjustments to eliminate the

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

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

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

acquiring persons or acquired persons).

5 The filings for transactions valued under $50M submitted in Fiscal Year 2010 reflects corrective filings.

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

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

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

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

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

Form.

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

year to filing the Notification and Report Form.

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

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

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

12 This represents the deviation from the fiscal year 2009 percentage.

13 This category includes transactions by newly-formed entities.

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

code.

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