# FEDERAL TRADE COMMISSION > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A3d3e0515d49fc1d8 ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text FEDERAL TRADE COMMISSION DEPARTMENT OF JUSTICE BUREAU OF COMPETITION ANTITRUST DIVISION hart-scott-rodino annual report Fiscal Year 2009 Section 7A of the Clayton Act Hart-Scott-Rodino Antitrust Improvements Act of 1976 (Thirty-second 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 detecting transactions that were the subject of the numerous enforcement actions brought in fiscal year 2009 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 2009, 716 transactions were reported under the HSR Act, representing about a 59% decrease from the 1,726 transactions reported in fiscal year 2008 and about an 85% decrease from the 4,926 transactions reported in fiscal year 2000, the last full fiscal year under the previous reporting thresholds. 2 (See Figure 1 below.) HSR Merger Transactions Reported Fiscal Years 2000-2009 6,000 4,926 Number of Transactions 5,000 4,000 3,000 2,376 2,201 1,675 2,000 1,768 1,726 1,428 1,187 1,014 716 1,000 0 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 Fiscal year (Figure 1) During the year, the Commission challenged 19 transactions, including obtaining a preliminary injunction blocking the proposed $1.4 billion merger of CCC Information Services Inc. and Mitchell International Inc. The Commission was successful in all 18 completed actions. In ten, the Commission obtained a consent decree. In the remaining eight cases, the parties abandoned the deal either after the Commission authorized staff to seek a preliminary injunction (five cases) or after learning of the Commission’s concerns. Currently, there is one challenge pending in federal court where the Commission is seeking a permanent injunction. One of the Commission’s notable challenges was against CSL Limited’s proposed $3.1 billion acquisition 1 The fiscal year covers the period of October 1, 2008 through September 30, 2009. The decrease in the number of reportable transactions since fiscal year 2000 is, to a considerable extent, a result of the significant statutory changes to the HSR Act that took effect on February 1, 2001. The legislation raised the size-of-transaction threshold from $15 million to $50 million (with annual adjustments for changes in gross national product that began in 2005), and made other changes to the filing and waiting period requirements. In fiscal year 2009, the threshold was adjusted to $65.2 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. 2 of Talecris Biotherapeutics Holdings Corporation, charging that the deal would substantially reduce competition in the U.S. markets for four plasma-derivative protein therapies used to treat patients suffering from illnesses such as primary immunodeficiency diseases, chronic inflammatory demyelinating polyneuropathy, alpha-1 antitrypsin disease, and hemolytic disease of the newborn. The Commission also challenged the consummated purchase by Ovation Pharmaceuticals, Inc. (Ovation) of the rights to the drug NeoProfen, a medicine used in the treatment of a type of congenital heart defect that effects approximately 30,000 premature babies per year in the United States. The Commission asserts that Ovation’s acquisition was intended to maintain its monopoly in the market for this treatment, and thus the Commission is seeking divestiture of assets related to one of the two treatments, and also disgorgement of all unlawfully obtained profits from the sale of these two treatments. On August 31, 2010, a federal district court in Minnesota dismissed the FTC’s case following a trial. The FTC has until November 1, 2010 to appeal the district court’s decision. The Antitrust Division challenged 12 merger transactions, leading to six consent decrees, one transaction abandoned after the complaint was filed, and five transactions that were abandoned or restructured after the Division informed the parties of its antitrust concerns relating to the transaction. Notably, the Division sued to block the proposed acquisition of National Beef Packing, the fourth-largest U.S. beef packer, by JBS, the third-largest U.S. beef packer, and the parties subsequently abandoned the transaction. The Division also obtained a consent decree requiring Microsemi Corporation to divest all of the assets it had acquired from Semicoa Inc, thereby remedying anticompetitive effects in the development, manufacture and sale of certain high reliability small signal transistors and ultra-fast recovery rectifier diodes used in military applications and space programs. In fiscal year 2009, 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). In recognition of the 30th anniversary of the implementation of the HSR Act, in October of 2008, the FTC held a workshop that was designed to provide a primer, especially for new attorneys, on the premerger notification process. 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 postconsummation filings, and frequently asked questions regarding the HSR filing requirements. Web users can also find up-to-date information on changes to the Act and amendments to the premerger rules, including speeches, press releases, summaries and highlights, and Federal Register notices about the amendments. The website also includes a database of informal interpretation letters, giving the public ready access to PNO staff interpretations of the premerger notification rules and the Act. As always, PNO staff is available to assist HSR practitioners comply with HSR notification requirements. 2 BACKGROUND OF THE HSR ACT Section 201 of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, Pub. L. No. 94-435, amended the Clayton Act by adding a new Section 7A, 15 U.S.C. §18a. In general, the HSR Act requires that certain proposed acquisitions of voting securities or assets must be reported to the Commission and the Antitrust Division prior to consummation. The parties must then wait a specified period, usually 30 days (15 days in the case of a cash tender offer or a bankruptcy sale), before they may complete the transaction. Whether a particular acquisition is subject to these requirements depends upon the value of the acquisition and, in certain acquisitions, the size of the parties as measured by their sales and assets. Small acquisitions, acquisitions involving small parties, and 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, however, the agency is authorized by Section 7A(e) of the Clayton Act to issue a request for additional information and documentary material (second request). The second request extends the waiting period for a specified period (usually 30 days, but 10 days in the case of a cash tender offer or bankruptcy sale) after all parties have complied with the request (or, in the case of a tender offer or a bankruptcy sale, after the acquiring person complies). This additional time provides the reviewing agency with the opportunity to analyze the information and to take appropriate action before the transaction is consummated. If the reviewing agency believes that a proposed transaction may substantially lessen competition, it may seek an injunction in federal district court to prohibit consummation of the transaction. The Commission may also challenge the transaction in administrative litigation. The Commission, with the concurrence of the Assistant Attorney General for the Antitrust Division, promulgated final rules implementing the premerger notification program on July 31, 1978. At that time, a comprehensive Statement of Basis and Purpose was also published, containing a section-by-section analysis of the rules and an item-by-item analysis of the filing form. 3 The program became effective on September 5, 1978. The Commission, with the concurrence of the Assistant Attorney General, has amended the rules and the filing form on several occasions over the years to improve the program’s effectiveness and to lessen the burden of complying with the rules. 4 3 43 Fed. Reg. 33450 (July 31, 1978). 43 Fed. Reg. 34443 (August 4, 1978); 43 Fed. Reg. 36053 (August 15, 1978); 44 Fed. Reg. (November 21, 1979); 45 Fed. Reg. 14205 (March 5, 1980); 48 Fed. Reg. 34427 (July 29, 1983); 50 Fed. Reg. 46633 (November 12, 1985); 51 Fed. Reg. 10368 (March 26, 1986); 52 Fed. Reg. 7066 (March 6, 1987); 52 Fed. Reg. 20058 (May 29, 1987); 54 Fed. Reg. 214251 (May 18, 1989); 55 Fed. Reg. 31371 (August 2, 1990); 60 Fed. Reg. 40704 (August 9, 1995); 61 Fed. Reg. 13666 (March 28, 1996); 63 Fed. Reg. 34592 (June 25, 1998); 66 Fed. Reg. 8680 (February 1, 2001); 66 Fed. Reg. 8723 (February 1, 2001); 66 Fed. Reg. 16241 (March 23, 2001); 66 Fed. Reg. 23561 (May 9, 2001); 66 Fed. Reg. 35541 (July 6, 2001); 67 Fed. Reg. 11898 (March 18, 2002); 67 Fed. Reg. 11904 4 3 A STATISTICAL PROFILE OF THE PREMERGER NOTIFICATION PROGRAM The appendices to this report provide a statistical summary of the operation of the premerger notification program. Appendix A shows, for a ten-year period, the number of transactions reported, the number of filings received, the number of merger investigations in which second requests were issued, and the number of transactions in which requests for early termination of the waiting period were received, granted, and not granted. 5 Appendix A also shows, for fiscal years 2000 through 2009, 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 2000 through 2009. The statistics set out in these appendices show that the number of transactions reported in fiscal year 2009 decreased 59% from the number of transactions reported in fiscal year 2008. In fiscal year 2009, 716 transactions were reported, while 1,726 were reported in fiscal year 2008. The statistics in Appendix A also show that the number of merger investigations in which second requests were issued in fiscal year 2009 decreased 24% from the number of merger investigations in which second requests were issued in fiscal year 2008. Second requests were issued in 31 merger investigations in fiscal year 2009 (15 issued by the FTC and 16 issued by the Division), while second requests were issued in 41 merger investigations in fiscal year 2008 (21 issued by the FTC and 20 issued by the Division). The percentage of transactions resulting in second requests increased, from 2.5% in fiscal year 2008 to 4.5% in fiscal year 2009. (See Figure 2 below.) Percentage of Transactions Resulting in Second Request Fiscal Years 2000-2009 5.0% 4.5% 4.3% 4.5% 3.6% Percent of Transactions 4.0% 3.1% 3.5% 3.1% 3.0% 3.0% 2.5% 2.6% 2.5% 2.5% 2.1% 2.0% 1.5% 1.0% 0.5% 0.0% 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 Fiscal year (Figure 2) (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). 5 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. 4 The statistics in Appendix A also show that early termination of the waiting period was requested in the majority of transactions. In fiscal year 2009, early termination was requested in 84% (575) of the transactions reported, remaining unchanged from fiscal year 2008 when it was also requested in 84% (1,385) of the transactions reported. The percentage of requests granted out of the total requested decreased from 74% in fiscal year 2008 to 69% in fiscal year 2009. Statistical tables (Tables I through XI) in Exhibit A contain information about the agencies’ enforcement activities for transactions reported in fiscal year 2009. 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 2009, clearance was granted to one or the other of the agencies for the purpose of conducting an initial investigation in 22.5% of the total number of adjusted HSR transactions. The tables also provide the number of transactions based on the dollar value of transactions reported and the reporting threshold indicated in the notification report. The total dollar value of reported transactions rose dramatically from fiscal years 1996 to 2000 from about $677.4 billion to about $3 trillion. After the statutory thresholds were raised, the dollar value declined to about $1 trillion in fiscal year 2001, $565.4 billion in fiscal year 2002, and $406.8 billion in fiscal year 2003. This was followed by an increase in the dollar value of reported transactions over the next four years: about $630 billion in fiscal year 2004, $1.1 trillion in fiscal year 2005, $1.3 trillion in fiscal year 2006, and almost $2 trillion in 2007. The total dollar value of reported transactions declined to just over $1.3 trillion in fiscal year 2008 and to $533 billion in fiscal year 2009. 6 Tables X and XI provide the number of transactions by industry group in which the acquiring person or the acquired entity derived the most revenue. Figure 3 illustrates the percentage of reportable transactions within industry groups for fiscal year 2009 based on the acquired entity’s operations. 7 Percentage of Transactions By Industry Group of Acquired Entity Fiscal Year 2009 Chemicals & Pharmaceuticals, 6.1% Transportation, 3.9% Health Services, 3.5% Consumer Goods & Services, 15.2% Energy & Natural Resources, 8.8% Information Technology, 8.2% Other, 33.5% Manufacturing, 7.9% Banking & Insurance, 12.9% (Figure 3) 6 The information on the value of reported transactions for fiscal year 2009 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). 7 The “Other” category consists of industry segments that include construction, educational services, performing arts, recreation, and non-classifiable establishments. 5 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 2009. 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, and interested members of the public, often provide the agencies with information about transactions and possible violations of the Act’s requirements. Under Section 7A(g)(1) of the Act, any person that fails to comply with the Act’s notification and waiting period requirements is liable for a civil penalty of up to $16,000 – recently increased from $11,000 – for each day the violation continues. 8 The antitrust agencies examine the circumstances of each violation to determine whether penalties should be sought. 9 During fiscal year 2009, 24 corrective filings for violations were received. During fiscal year 2009, the agencies brought two enforcement actions, resulting in the payment of $2.2 million in civil penalties. In United States v. ESL Partners, L.P. and ZAM Holdings L.P., 10 the complaint alleged that ESL Partners and ZAM Holdings, two related investment funds, violated premerger reporting requirements by failing to file before acquiring voting securities of AutoZone Inc. in 2004. As a result of these acquisitions, each fund held AutoZone voting securities valued in excess of the $50 million HSR reporting threshold then in effect. Under the terms of a consent decree that was filed simultaneously with the complaint and entered by the court on December 16, 2008, the parties were required to pay civil penalties totaling $800,000, with ESL Partners paying $525,000 and ZAM Holdings paying $275,000 to settle the charges. In United States v. John C. Malone, 11 the complaint alleged that media executive John C. Malone failed to comply with premerger notification requirements before acquiring voting securities of Discovery Holding Company in August 2005, and continued to acquire Discovery voting securities through April 2008. The defendant made a corrective filing for acquisitions of Discovery voting securities on June 12, 2008, but before the expiration of the waiting period triggered by that filing, he made additional acquisitions of Discovery voting securities on June 14, 2008, when he exercised two options. Under the terms of a consent decree filed 8 Dollar amounts specified in civil monetary penalty provisions within the Commission’s jurisdiction are adjusted for inflation in accordance with the Debt Collection Improvement Act of 1996, Pub. L. No. 104-134 (April 26, 1996). The adjustments have included an increase in the maximum civil penalty from $10,000 to $11,000 for each day during which a person is in violation under Section 7A(g)(1) (61 Fed. Reg. 54548 (October 21, 1996), corrected at 61 Fed. Reg. 55840 (October 29, 1996)) and to $16,000 effective February 10, 2009 (74 Fed. Reg. 85701 (January 9, 2009)). 9 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. 10 United States v. ESL Partners, L.P. and ZAM Holdings, L.P., No. 1:08-CV-02175 (D.D.C. filed December 15, 2008). 11 United States v. John C. Malone, No. 1:09-CV-01147 (D.D.C. filed June 23, 2009). 6 simultaneously with the complaint and entered by the court on June 25, 2009, Malone agreed to pay $1.4 million 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 13, 2009, the Commission published a notice 12 to reflect adjustment of reporting thresholds as required by the 2000 amendments 13 to Section 7A of the Clayton Act, 15 U.S.C. §18a. The revised thresholds became effective February 12, 2009. MERGER ENFORCEMENT ACTIVITY 14 1. The Department of Justice During fiscal year 2009, the Antitrust Division challenged 12 merger transactions that it concluded might have substantially lessened competition if allowed to proceed as proposed. In seven of these challenges, the Antitrust Division filed a complaint in U.S. district court. Six of these cases were settled by consent decree, and in one matter, the parties abandoned the transaction after the complaint was filed. In the other five challenges during fiscal year 2009, when apprised of the Antitrust Division’s concerns regarding their proposed transactions, the parties in three instances abandoned the proposed transaction and in two instances restructured the proposed transaction to avoid competitive problems. 15 In United States v. The Manitowoc Company, Inc., Enodis plc and Enodis Corporation, 16 the Division challenged the proposed $2.7 billion acquisition of Enodis plc by Manitowoc. The complaint alleged that the transaction, as originally proposed, would have substantially lessened 12 74 Fed. Reg. 1687 (January 13, 2009). 15 U.S.C. §18a(a). See Pub. L. 106-553, 114 Stat. 2762. 14 The cases in this report were not necessarily reportable under the premerger notification program. Because of provisions regarding the confidentiality of the information obtained pursuant to the Act, it would be inappropriate to identify which cases were initiated under the program except in specific instances where such information has already been disclosed. 15 In one instance, the Division issued a press release: December 11, 2008 – proposed acquisition of National City Corporation by PNC Financial Services Group, Inc. (banking services). See infra at p. 10. In the other four instances, the Division informed the parties of its concerns, but did not issue a press release: proposed joint venture between Depository Trust & Clearing Corporation and Markit Group, Ltd. (credit derivatives data and clearing services); proposed acquisition of NRG Energy Inc. by Exelon Corp. (wholesale electricity); proposed acquisition of Multimodal Technologies, Inc. by Nuance Communications, Inc. (voice recognition engines); and proposed acquisition of 3M’s Belle Mead, New Jersey aggregate quarry by Tilcon New York Inc. or Trap Rock Industries, Inc. (coarse quarry aggregate). 16 United States v. The Manitowoc Company, Inc., Enodis plc and Enodis Corporation, No. 1:08-CV01704 (D.D.C. filed October 06, 2008). 13 7 competition in the development, production, distribution, and sale of commercial cube ice machines in the United States, likely resulting in increased prices and reduced quality and innovation. Commercial cube ice machines are used by restaurants, convenience stores, hotels, and other businesses that require significant volumes of cube ice. The Division filed a proposed consent decree simultaneously with the complaint, settling the suit. Under the terms of the decree, which was entered by the court on February 17, 2009, the parties were required to divest Enodis’ entire U.S. ice machine business in order to proceed with the acquisition. This remedy was consistent with the remedy obtained by the European Commission as a result of its antitrust investigation, and the Division and the European Commission cooperated throughout the course of their investigations. In United States et al. v. JBS S.A. and National Beef Packing Company, LLC, 17 the Division sued to block the proposed acquisition of National Beef Packing, the fourth-largest U.S. beef packer, by JBS, the third-largest U.S. beef packer. The Attorneys General of Colorado, Iowa, Kansas, Minnesota, Missouri, Montana, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Texas and Wyoming joined in the Division’s lawsuit and, thereafter, on November 7, 2009, the States of Arizona, Connecticut, Mississippi, and New Mexico joined the lawsuit as well. The complaint alleged that the acquisition would have substantially lessened competition among packers for the purchase of fed cattle – cattle ready for slaughter – in the High Plains (centered in Colorado, western Iowa, Kansas, Nebraska, Oklahoma, and Texas) and the Southwest, and would also have substantially lessened competition among packers in the production and sale of USDA-graded boxed beef nationwide. As a result, cattle producers, ranchers and feedlots likely would have received lower prices for their cattle, and grocers, food service companies and ultimately United States consumers likely would have paid higher prices for USDA-graded beef. On February 20, 2009, the parties announced that they abandoned the transaction, and the Division subsequently moved to dismiss the lawsuit. In United States et al. v. Verizon Communications Inc. and Alltel Corporation, 18 the Division and the States of Alabama, California, Iowa, Kansas, Minnesota, North Dakota, and South Dakota challenged the proposed $28 billion acquisition of Alltel Corporation by Verizon Communications. The complaint alleged that the transaction, as originally proposed, would have substantially lessened competition for mobile wireless telecommunications services in 94 Cellular Marketing Areas (CMAs), as defined by the Federal Communications Commission, likely resulting in higher prices, lower quality, and reduced network investments. Verizon and Alltel were each other’s closest competitor for a significant set of customers in each of these 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 April 24, 2009, Verizon was required to divest assets in each of these 94 areas in order to proceed with the acquisition. Additionally, as part of the settlement, the Division filed proposed modifications to two existing consent decrees with Verizon that will require Verizon to divest wireless businesses in six additional CMAs. The total of 100 areas in which divestitures are required covers 22 states, including the entire states of North Dakota and South Dakota; large portions of Colorado, Georgia, Kansas, Montana, South Carolina, Utah and Wyoming; and portions of Alabama, Arizona, California, Idaho, Illinois, Iowa, Minnesota, Nebraska, Nevada, New Mexico, North Carolina, Ohio, and Virginia. The Division coordinated with the FCC throughout its investigation, and the 17 United States et al. v. JBS S.A. and National Beef Packing Company, LLC, No. 08CV5992 (N.D. Il. filed October 20, 2008). 18 United States et al. v. Verizon Communications Inc. and Alltel Corporation, No. 1:08-CV-01878 (D.D.C. filed October 30, 2008). 8 acquisition was also subject to FCC review. In United States v. InBev N.V./S.A., InBev USA LLC and Anheuser-Busch Companies Inc., 19 the Division challenged the proposed $52 billion acquisition of Anheuser-Busch, the largest brewer in the United States with approximately 50% of beer sales nationwide, by Belgium-based InBev. Although InBev accounted for only about 2% of beer sales nationwide, InBev’s Labatt brand beers accounted for a significant portion of the Buffalo, Rochester, and Syracuse, New York metropolitan area beer markets. The complaint alleged that the transaction, as originally proposed, would have eliminated head-to-head competition between AnheuserBusch’s Budweiser and InBev’s Labatt brands, significantly increased market concentration in those areas, and likely would have led to higher prices for beer there. The Division filed a proposed consent decree simultaneously with the complaint. Under the terms of the decree, InBev was required to divest its Labatt USA subsidiary along with a license to brew, market, promote, and sell Labatt brand beer for consumption in the United States. The court entered the decree on August 11, 2009. In United States et al. v. Republic Services, Inc. and Allied Waste Industries, Inc., 20 the Division, joined by the States of California, Kentucky, Michigan, North Carolina, Ohio, Pennsylvania, and Texas, challenged the proposed $4.5 billion acquisition of Allied Waste by Republic Services. The complaint alleged that the transaction, as originally proposed, would have substantially lessened competition in commercial waste collection and/or disposal services in 15 metropolitan areas, resulting in higher prices and poorer service for consumers. In each of these areas, Republic and Allied were two of only a few significant firms providing commercial waste hauling or municipal solid waste disposal services. The Division filed a proposed consent decree simultaneously with the complaint, requiring divestiture of commercial waste collection and disposal assets in the 15 affected metropolitan areas. The required divestitures include 87 commercial waste collection routes, nine landfills, 10 transfer stations, and ancillary assets. The court entered the decree on July 15, 2010. In United States v. Microsemi Corporation, 21 on December 18, 2008, the Division challenged the July 14, 2008 acquisition of most of the assets of Semicoa Inc. by Microsemi Corporation. The complaint alleged that the acquisition significantly lessened competition in the development, manufacture and sale of certain high reliability small signal transistors and ultrafast recovery rectifier diodes used in military applications and space programs, in violation of Section 7 of the Clayton Act and Section 2 of the Sherman Act. As a result of the transaction, prices for these products increased and were likely to continue to increase, delivery times became less reliable, and terms of service were likely to become less favorable. On August 20, 2009, the Division filed a proposed consent decree that would settle the lawsuit by requiring Microsemi to divest all of the assets that it acquired from Semicoa. The court entered the decree on January 29, 2010. In United States v. Sapa Holding AB and Indalex Holdings Finance, Inc., 22 the Division 19 United States v. InBev N.V./S.A., InBev USA LLC and Anheuser-Busch Companies Inc., No. 1:08-CV01965 (D.D.C. filed November 14, 2008). 20 United States et al. v. Republic Services, Inc. and Allied Waste Industries, Inc, No. 1:08-CV-02076 (D.D.C. filed December 03, 2008). 21 United States v. Microsemi Corporation, No. 8:09-CV-00275 (E.D. VA filed December 18, 2008) (case transferred to C.D. Cal.). 22 United States v. Sapa Holding AB and Indalex Holdings Finance, Inc. No. 1:09-CV-01424 (D.D.C. filed July 30, 2009). 9 challenged the proposed acquisition of Indalex by Sapa. The complaint alleged that the transaction, as originally proposed, would have substantially lessened competition for the manufacture and sale of aluminum sheathing (coiled extruded aluminum tubing) used in the manufacture of high frequency coaxial cables that are purchased by cable television companies to transmit broadband signals to their subscribers. Sapa and Indalex were the only two manufacturers of aluminum sheathing in the United States. The Division filed a proposed consent decree simultaneously with the complaint. Under the terms of the decree, which was entered by the court on January 12, 2010, the parties were required to divest either Sapa’s Catawba, North Carolina aluminum sheathing manufacturing plant or Indalex’s aluminum sheathing facility at its Burlington, North Carolina plant. During fiscal year 2009, the Division also investigated a bank merger transaction for which divestiture was required. A letter of agreement between the parties and the Division required PNC to divest 61 National City Bank branches in western Pennsylvania along with their associated loans and deposits and certain middle market banking relationships. The Division advised the Board of Governors of the Federal Reserve System, whose final approval of the merger was required, that with these divestitures, the merger would not have a significantly adverse effect on competition in local markets for retail banking, small business banking and middle market banking services. 23 Additionally during fiscal year 2009, the Division initiated one civil contempt proceeding in an instance where a party failed to fulfill obligations imposed by judicial decrees in a previous Division merger challenge. On January 14, 2009, the Division filed a petition in the U.S. District Court for the District of Columbia, asking it to find AT&T in civil contempt for violating the consent decree and a related order entered by the court in United States v. AT&T and Dobson Communications Corporation. 24 Under these judicial decrees, AT&T was required to divest mobile wireless telecommunications business in three rural service areas and to take all steps necessary to ensure that the divested businesses were operated independently of AT&T and that AT&T did not influence how they were managed. AT&T was also required to take all reasonable efforts to preserve the confidentiality of information material to the operation of the divested businesses and not give unauthorized personnel access to such information. According to the Division’s civil contempt petition, AT&T failed to separate confidential customer account information of the businesses to be divested from its own customer records and to take other actions needed to prevent unauthorized disclosure. Consequently, AT&T personnel obtained unauthorized access to these businesses’ competitively sensitive customer information and in some instances used it to solicit and lure away their customers. The petition also alleged that AT&T, without authorization by the management trustee appointed to oversee the businesses being divested, waived early termination fees for several customers of those businesses to facilitate switching their wireless service to AT&T. The Division filed a proposed settlement simultaneously with the petition, requiring AT&T to pay $2,050,000 as part of a civil settlement to resolve AT&T’s alleged violation of the court orders. The payment to the United States includes reimbursement to the government for the cost of its investigation into AT&T’s alleged violations. The court approved the settlement in January 14, 2009. The Division coordinated with the FCC throughout its investigation. 23 Letter of December 11, 2008, to the Board of Governors of the Federal Reserve System regarding the acquisition by PNC Financial Services Group, Inc., Pittsburgh, PA of National City Corporation, Cleveland, OH (http://www.justice.gov/atr/public/press releases/2008/240315 htm). 24 See the HSR Annual Report, Fiscal Year 2008 for a description of this case. 10 2. The Federal Trade Commission The Commission challenged 19 transactions that it had reason to believe may have lessened competition if allowed to proceed as proposed during fiscal year 2009, 25 leading to nine Part 2 consent orders, six administrative complaints, one filed permanent injunction action, and three transactions where the parties either abandoned the proposed deal or where the transactions were restructured after FTC staff informed the parties of its antitrust concerns relating to the transaction. In one of the cases in which the Commission issued an administrative complaint the parties settled the charges by agreeing to a divestiture. In the remaining five matters in which an administrative complaint was issued, the Commission also authorized staff to seek injunctive relief in federal court. In two of these cases the parties abandoned the proposed transactions before staff filed the request, in two cases the parties abandoned the merger after the FTC filed, but before a ruling was issued, and in the last case the parties abandoned the transaction after the FTC secured a preliminary injunction in federal court. In this matter, after a nine-day evidentiary hearing, the District Court for the District of Columbia found that the Commission had raised serious and substantial questions that the proposed merger would substantially lessen competition and issued a preliminary injunction blocking the proposed $1.4 billion merger of CCC Information Services Inc. and Mitchell International Inc. In addition to these actions, the Commission filed a challenge in federal court to challenge Ovation Pharmaceuticals’ consummated acquisition of the drug NeoProfen. In Red Sky Holdings LP/Newpark Resources, Inc., 26 the Commission issued an administrative complaint seeking to block CCS Corporation’s proposed $85 million acquisition of Newpark Environmental Services. According to the Commission’s complaint, the proposed transaction was anticompetitive because it would have consolidated two of the leading providers of waste disposal services for the offshore oil and natural gas exploration and production industry in the Gulf Coast Region, leading to higher prices and decreased service levels. In response to the complaint, CCS, a subsidiary of Red Sky, threatened to close down its operations in the Gulf Coast should the acquisition not receive the necessary regulatory approvals. The Commission dismissed the warnings as an effort to avoid a challenge to the transaction, and continued to seek a preliminary injunction, and temporary restraining order in Federal Court. As a result, the parties informed the Commission of their intent to abandon the transaction in November of 2008. The Commission subsequently dismissed its administrative complaint in December 2008. In the matter of CCC Information Services Inc./Mitchell International Inc., 27 the Commission issued an administrative complaint charging that the $1.4 billion merger between CCC Information Services and Mitchell International would be anticompetitive in the market for “estimatics”, a database system used by auto insurers and repair shops to generate repair estimates for consumers. According to the complaint, the transaction would have also harmed competition in the market for total loss valuation (TLV) systems, used to calculate the value of a “totaled” vehicle. After the merger, the combined entity would have well over half of the market share for these systems, allowing for unilateral price increases, and facilitating coordination among the remaining smaller competitors in the market. The Commission concurrently 25 To avoid double counting, this report includes only those merger enforcement actions in which the Commission took its first public action during fiscal year 2009. 26 FTC v. Red Sky Holdings LP and Newpark Resources, Inc., Civ. Act. No. 4:08CV3147 (E.D. Tx. Oct. 23, 2008). 27 FTC v. CCC Holdings Inc., and Aurora Equity Partners, III L.P., Dkt. No. 9334 (administrative complaint issued Nov. 25, 2008). 11 authorized staff to file a complaint in federal district court. On March 9, 2009, the U.S. District Court for the District of Columbia ordered a preliminary injunction preventing the parties from consummating the transaction pending a full administrative trial on the merits. On March 13, 2009, after the respondents announced that they had decided not to proceed with the proposed merger, the Commission dismissed the administrative complaint. In the matter of CRH plc / Robert Schlegel, 28 the Commission issued an administrative complaint to challenge Oldcastle Architectural’s (a subsidiary of CRH) proposed $540 million acquisition of Pavestone Companies in the U.S. market for drycast concrete hardscape products sold to retailers such as The Home Depot, Lowe’s, and Wal-Mart. According to the complaint, the acquisition would have reduced competition by combining the only two companies capable of the national manufacture and sale of these heavy products, which include concrete pavers, segmented retaining wall blocks, and concrete patio products. The Commission alleged entry into this market would be unlikely due to the difficulty in distribution of such products. The acquisition as proposed would have resulted in Oldcastle gaining a 90% market share for the manufacture and sale of these drycast products to home centers in the United States. In addition to the administrative complaint, the Commission authorized staff to file a complaint in U.S. District Court for the District of Columbia seeking a temporary restraining order and preliminary injunction to prevent consummation of the proposed transaction pending an administrative trial on the merits. On January 29, 2009, because the respondents announced that they had decided not to proceed with the proposed merger, the Commission dismissed the administrative complaint. In the matter of Talecris Biotherapeutics / CSL Ltd., 29 the Commission issued an administrative complaint to block CSL Limited’s proposed $3.1 billion acquisition of Talecris Biotherapeutics Holdings Corporation, charging that the deal would have substantially reduced competition in the U.S. markets for four plasma-derivative protein therapies used to treat patients suffering from illnesses such as primary immunodeficiency diseases, chronic inflammatory demyelinating polyneuropathy, alpha-1 antitrypsin disease, and hemolytic disease of the newborn. The Commission also authorized the staff to seek a preliminary injunction in federal district court in Washington, D.C., to stop the transaction pending completion of the administrative trial. Following the Commission’s filing of a lawsuit to block the transaction, CSL Limited announced, on June 8, 2009, that it would not proceed with its proposed acquisition. In the matter of Thoratec Corporation / HeartWare International, Inc., 30 the Commission authorized a lawsuit to block Thoratec Corporation’s proposed $282 million acquisition of rival medical device maker HeartWare International, Inc., charging that the transaction would have substantially reduced competition in the U.S. market for left ventricular devices (LVADs), a lifesustaining treatment for patients with advanced heart failure. The FTC’s administrative complaint alleges that Thoratec seeks to maintain its monopoly by acquiring HeartWare, thus eliminating the only significant threat to Thoratec’s continued dominance of the LVAD market. In August of 2009, because the parties announced that they had decided not to proceed with the proposed acquisition, the Commission dismissed the administrative complaint. 28 FTC v. CRH plc, Oldcastle, Inc., Oldcastle Architectural, Inc., Robert Schlegel, and Pavestone Company, L.P., Dkt. No. 9335 (administrative complaint issued Jan. 14, 2009). 29 FTC v. CSL Ltd. and Cerberus-Plasma Holdings, LLC, Dkt. No. 9337 (administrative complaint issued May 27, 2009). 30 FTC v. Thoratec Corporation, Inc. and HeartWare International, Inc., Dkt. No. 9339 (administrative complaint issued Jan. 14, 2009). 12 In the matter of Ovation Pharmaceuticals, Inc., 31 the Commission filed a complaint in federal district court challenging Ovation Pharmaceuticals, Inc.’s January 2006 acquisition of the drug NeoProfen, which eliminated its only competitor for the treatment of a serious and potentially deadly congenital heart defect affecting more than 30,000 babies born prematurely each year in the United States. According to the Commission’s complaint, shortly after the acquisition, which fell below the premerger notification threshold and thus avoided premerger antitrust review, Ovation raised the price on its Indocin treatment from $36 per vial to $500 per vial, exercising its monopoly power, and forcing desperate consumers to pay artificially inflated prices to treat this potentially fatal condition. The Commission is seeking divestiture of assets related to one of the two treatments, and also disgorgement of all unlawfully obtained profits from the sale of these two treatments. On August 31, 2010, a federal district court in Minnesota dismissed the FTC’s case following a trial; the FTC has 60 days to file a notice of appeal. In the matter of Carilion Clinic, 32 the Commission issued an administrative complaint challenging Carilion Clinic’s 2008 acquisition of two competing outpatient clinics in the Roanoke, Virginia, area. The complaint alleges that Carilion’s acquisition of these outpatient centers eliminated competition in violation of federal antitrust laws, and would lead to higher health care costs and reduced incentives to maintain and improve service and quality of care for patients in the Roanoke area. The complaint stated that the divestiture of these centers and related assets was necessary to restore the competition eliminated by the acquisition. On October 7, 2009 Carilion agreed to sell the two independent outpatient medical clinics it acquired previously to settle charges that the acquisitions were anticompetitive and violated federal law. In fiscal year 2009, the Commission accepted consent agreements and issued proposed orders for public comment in nine merger cases. Eight of the Consent Orders became final in fiscal year 2009; one became final in fiscal year 2010. In Huntsman Corporation / Hexion Specialty Chemicals Inc., 33 the Commission challenged Hexion LLC’s proposed acquisition of Huntsman Corp., issuing a consent order which requires the divestiture of Hexion’s specialty epoxy business, and prevents the sharing of sensitive and non-public information which could lead to coordination of prices. Huntsman and Hexion are producers of high-performance and specialty chemicals used in the aerospace and alternative energy industries. Subsequently, Hexion LLC and Huntsman Corporation petitioned the Commission to reopen and set aside two orders related to their proposed merger because they terminated their planned merger and withdrew their premerger notification filings. Following a public comment period, the Commission has granted, in part, a petition by Hexion LLC and Huntsman Corporation requesting that two FTC Orders related to their proposed merger be reopened and set aside. The agency determined that the firms have satisfactorily shown that changed conditions require that the matter be reopened. In particular, the firms have abandoned the acquisition that the Orders were intended to remedy. In its decision, the Commission set aside the Asset Maintenance Order in its entirety, as well as the Decision and Order regarding Huntsman. 31 FTC v. Ovation Pharmaceuticals, Inc. (Renamed FTC v. Lundbeck Inc.), CIV. No. 08-cv-6379 (D.D. Minn. December 16, 2008). 32 FTC v. Carilion Clinic, Dkt No. 9338 (administrative complaint issued Jul. 23, 2009). 33 In the matter of Huntsman Corporation / Hexion Specialty Chemicals Inc, Docket No. C-4235 (proposed order issued Oct. 2, 2008). 13 In Teva Pharmaceutical / Barr Pharmaceuticals, 34 the Commission challenged the proposed $8.9 billion acquisition of Barr Pharmaceuticals by Teva Pharmaceutical Industries alleging that the acquisition would have lessened competition in the markets for 17 commonly used generic medications including drugs used in the treatment of cancer, bacterial infections, diabetes, acid reflux, and depression as well as several varieties of oral contraceptives. According to the Commission’s complaint, the acquisition would have likely led to higher prices for consumers through the removal of one of only four competitors in each of these markets. The Commission’s consent agreement requires both Teva and Barr to sell assets in 29 U.S. markets to either Watson Pharmaceuticals or Qualitest Pharmaceuticals. In Inverness Medical Innovations, Inc./ACON, 35 the Commission issued an order that restored competition in the U.S. market for consumer pregnancy tests, by effectively reversing a consummated transaction in which Inverness Medical Innovations, a 70% market share holder, purchased the assets related to the development of a water-soluble dye based pregnancy test from ACON Laboratories in order to protect its monopoly power in the market. According to the Commission’s complaint, Inverness restrained competition in two ways. First, Inverness issued covenants not to compete to ACON, took profits from ACON’s joint venture with Church & Dwight, and purchased intellectual property rights which would restrict ACON from developing competing products. Second, Inverness limited product innovation by purchasing, but not using, the water-soluble dye test technology purchased from ACON, one of the only companies utilizing that technology. The Commission’s consent order ended any restrictions Inverness had over the joint venture between ACON and Church & Dwight, and required that Inverness divest its assets relating to the water-soluble dye technology, and its related pregnancy test product. In King Pharmaceuticals, Inc./Alpharma Inc., 36 the Commission approved a consent order to restore competition in the market for oral long-acting opioids (LAOs). The FTC intervened in King Pharmaceutical’s proposed $1.6 billion acquisition of rival drug-maker Alpharma Inc. because the transaction would have joined the two leading producers of morphine sulfate oral LAO’s in the United States, a market which was already highly concentrated and which had annual sales of $4 billion in 2007. In order to maintain competition in the market, the Commission’s consent order requires King to divest its branded oral LAO drug Kadian to Actavis, a company which already manufactured the drug for King, and which could then produce a generic equivalent of the drug sooner than would have been permitted under King’s patent, which would not have expired until 2010. In Dow Chemical/Rohm & Haas, 37 the Commission challenged Dow Chemical’s $18.8 billion proposed acquisition of Rohm & Haas Company alleging that it would have lessened competition in the markets for various acrylics and other industrial chemicals used to make coated paper products, paints, and adhesives. According to the Commission’s complaint, the product markets in question include acrylic monomers, used in goods ranging from hygiene products to paints and industrial coatings, hollow sphere particles used in paper products, and acrylic latex polymers used in traffic paints. Given the high concentration in each of the product 34 In the matter of Teva Pharmaceutical / Barr Pharmaceuticals, Docket No. C-4242 (proposed order issued Oct. 23, 2008). 35 In the matter of Inverness Medical Innovations, Inc./ACON, Docket No. C-4244 (proposed order issued Dec. 23, 2008). 36 In the matter of King Pharmaceuticals, Inc./Alpharma Inc., Docket No. C-4246 (proposed order issued Dec. 29, 2008). 37 In the matter of Dow Chemical/Rohm & Haas, Docket No. C-4243 (proposed order issued Jan. 23, 2009). 14 markets, the Commission alleged the proposed acquisition would have been a merger to monopoly. To remedy its anticompetitive concerns, the Commission is requiring Dow to divest its assets in the aforementioned product markets to an FTC-approved buyer. In Getinge AB/Datascope Corp, 38 the Commission challenged Getinge AB’s proposed $865 million acquisition of rival Datascope Corporation as anticompetitive in the market for endoscopic vessel harvesting devices (EVHs). EVHs are used during coronary artery bypass graft surgery where a vein is removed from a patient’s leg or arm to replace a damaged or blocked coronary artery. According to the Commission’s complaint, the acquisition as proposed would substantially lessen competition in the relevant market, giving Getinge nearly a 90% market share and the ability to unilaterally increase prices while reducing the likelihood of innovation. The Commission issued a consent order remedying its concerns requiring that Datascope divest its EVH assets to Sorin Group USA, an FTC approved buyer, within 10 days of consummating the transaction. In Lubrizol/Lockhart Chemical, 39 the Commission challenged Lubrizol Corporation’s consummated 2007 acquisition of the oxidate assets of The Lockhart Company which had the effect of substantially lessening competition in the already highly concentrated U.S. market for chemical rust inhibitors. These inhibitors are commonly used to prevent rusting during the manufacture of metal products such as automobiles and other heavy equipment. According to the Commission’s complaint the acquisition removed Lubrizol’s last substantial competitor in the relevant market. In addition, the Commission challenged a non-compete agreement included in the terms of the acquisition which prevented Lockhart from competing in the relevant market for 5 years because it restrained the ability of new firms to enter the market as competitors. The Commission issued a consent order remedying its anticompetitive concerns requiring the divestiture of the oxidate assets in question to Additives International and the elimination of the non-compete agreement. In BASF/Ciba Specialty Chemicals, 40 the Commission charged that BASF’s proposed $5.1 billion acquisition of rival chemical manufacturer Ciba Holding Inc. would be anticompetitive and would violate federal law by reducing competition in the worldwide markets for two high performance pigments. Under the terms of a consent order allowing the transaction to proceed, the FTC requires BASF to sell all assets, including the intellectual property related to the two pigments, bismuth vanadate and indanthrone blue, to a Commission-approved buyer within six months. In K&S AG/Dow Chemical, 41 the Commission approved a consent order to maintain competition in the market for bulk de-icing road salt in Maine and Connecticut that otherwise would have been lost as a result of K+S Aktiengesellschaft’s (K+S) $1.68 billion proposed acquisition of Morton International, Inc. To protect state and local governments from higher prices, the order requires K+S’s U.S. subsidiary, International Salt Company LLC (ISCO), to sell its bulk de-icing salt assets in Maine to Eastern Salt Company, Inc., and to sell a similar set of assets in Connecticut to Granite State Minerals, Inc. 38 In the matter of Getinge AB/Datascope Corp, Docket No. C-4251 (proposed order issued Jan. 29, 2009). In the matter of Lubrizol/Lockhart Chemical, Docket No. C-4245 (proposed order issued Feb. 26, 2009). 40 In the matter of BASF/Ciba Specialty Chemicals, Docket No. C-4253 (proposed order issued Apr. 4, 39 2009). 41 In the matter of K&S AG/Dow Chemical, Docket No. C-4273 (proposed order issued Sep. 25, 2009). 15 ONGOING REASSESSMENT OF THE EFFECTS OF THE PREMERGER NOTIFICATION PROGRAM The Commission and the Antitrust Division continually review the impact of the premerger notification program on the business community and antitrust enforcement. As indicated in past annual reports, the HSR program ensures that virtually all significant mergers or acquisitions that affect consumers in the United States will be reviewed by the antitrust agencies prior to consummation. The agencies generally have the opportunity to challenge unlawful transactions before they occur, thus avoiding the problem of constructing effective postacquisition relief. As a result, the HSR Act is doing what Congress intended, giving the government the opportunity to investigate and challenge mergers that are likely to harm consumers before injury can arise. Prior to the premerger notification program, businesses could, and frequently did, consummate transactions that raised significant antitrust concerns before the antitrust agencies had the opportunity to consider adequately their competitive effects. The enforcement agencies were forced to pursue lengthy post-acquisition litigation, during the course of which harm from the consummated transaction continued (and afterwards as well, where achievement of effective post-acquisition relief was not practicable). Because the premerger notification program requires reporting before consummation, this problem has been significantly reduced. Always cognizant of the program’s impact and effectiveness, the enforcement agencies continue to seek ways to speed up the review process and reduce burdens for companies. As in past years, the agencies will continue their ongoing assessment of the HSR program to increase accessibility, promote transparency, and to reduce the burden on the filing parties without compromising the agencies’ ability to investigate and interdict proposed transactions that may substantially lessen competition. 16 LIST OF APPENDICES Appendix A - Summary of Transactions, Fiscal Years 2000 - 2009 Appendix B - Number of Transactions reported and Filings Received by Month for Fiscal Years 2000 - 2009 LIST OF EXHIBITS Exhibit A - Statistical Tables for Fiscal year 2009, Presenting Data Profiling Hart-Scott-Rodino Premerger Notification Filings and Enforcement Interests APPENDIX A SUMMARY OF TRANSACTIONS FISCAL YEARS 2000 – 2009 APPENDIX A SUMMARY OF TRANSACTION BY YEAR 2000 2001 2008 2009 Transactions Reported 4,926 2,376 1,187 1,014 1,428 1,675 1,768 2,201 1,726 716 Filings Received1 9,941 4,800 2,369 2,001 2,825 3,287 3,510 4,378 3,455 1411 4,749 2,237 1,142 968 1,377 1,610 1,746 2,108 1,656 684 98 70 49 35 35 50 45 63 41 31 43 27 27 15 20 25 28 31 21 15 0.9% 1.2% 2.4% 1.5% 1.5% 1.6% 1.6% 1.5% 1.3% 2.2% 55 43 22 20 15 25 17 32 20 16 1.2% 1.9% 1.9% 2.1% 1.1% 1.6% 1.0% 1.5% 1.2% 2.3% 4,324 2,063 1,042 700 1,241 1,385 1,468 1,840 1,385 575 Granted5 3,515 1,603 793 606 943 997 1,098 1,402 1,021 396 Not Granted5 809 460 249 94 298 388 370 179 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 2002 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. 1 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. 2 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. 3 These statistics are based on the date the request was issued and not the date the investigation was opened. 4 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. 5 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 2000 - 2009 APPENDIX B TABLE 1. NUMBER OF TRANSACTIONS REPORTED BY MONTH FOR FISCAL YEARS 2000 - 2009 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 October 376 360 89 77 93 139 130 201 158 91 November 428 451 105 104 127 160 148 189 191 85 December 468 345 95 78 143 126 137 151 172 37 January 335 245 111 93 85 138 142 143 158 42 February 440 66 87 71 109 99 124 157 119 32 March 455 120 109 74 137 121 150 194 131 42 April 343 94 99 92 127 121 125 156 128 60 May 398 153 111 83 125 171 158 250 150 58 June 494 190 88 80 117 153 172 202 146 51 July 351 94 121 86 123 118 141 219 128 62 August 446 163 97 85 134 170 186 200 126 77 September 392 95 75 91 108 159 155 139 119 79 TOTAL 4,926 2,376 1,187 1,014 1,428 1,675 1,768 2,201 1,726 716 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 2000 - 2009 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 October 777 751 190 148 185 277 261 401 319 185 November 839 920 211 206 254 324 311 376 380 165 December 922 686 183 150 280 238 260 294 343 79 January 677 499 224 179 161 259 279 288 316 77 February 867 144 174 146 207 201 257 317 246 63 March 959 243 230 144 277 239 309 381 242 81 April 695 188 203 182 245 242 270 312 272 119 May 859 296 212 168 258 337 300 481 294 114 June 1,004 378 170 158 241 297 346 403 293 99 July 718 182 230 170 234 236 255 441 259 121 August 886 332 191 164 270 328 367 396 251 149 September 738 181 151 186 213 309 295 288 240 159 TOTAL 9,941 4,800 2,369 2,001 2,825 3,287 3,510 4,378 3,455 1,411 Note: The data for FY 2004 – FY 2007 “Filings Received” reflect corrections to some prior Annual reports to account for a coding error. 1 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 2009 DATA PROFILING HART-SCOTT-RODINO PREMERGER NOTIFICATION FILINGS AND ENFORCEMENT INTERESTS TABLE I FISCAL YEAR 2009 1 2 ACQUISITIONS BY SIZE OF TRANSACTION (BY SIZE RANGE) HSR TRANSACTIONS TRANSACTION RANGE ($MILLIONS) 4 NUMBER PERCENT CLEARANCE GRANTED TO FTC OR DOJ NUMBER SECOND REQUEST INVESTIGATIONS 3 PERCENT OF TRANSACTION RANGE GROUP NUMBER PERCENT OF TRANSACTION RANGE GROUP 50M - 100M 100M - 150M 150M - 200M 200M - 300M 4 141 148 61 94 0.6% 20.6% 21.6% 8.9% 13.7% FTC 0 13 14 8 10 300M - 500M 500M - 1000M Over 1000M 70 100 66 10.2% 14.6% 9.6% 11 17 25 7 15 7 15.7% 17.0% 37.9% 10.0% 15.0% 10.6% 25.7% 32.0% 48.5% 1 2 10 1 6 3 1.4% 2.0% 15.2% 1.4% 6.0% 4.5% 2.9% 8.0% 19.7% ALL TRANSACTIONS 684 100.0% 98 56 14.3% 8.2% 22.5% 15 16 2.2% 2.3% 4.5% Below 50M 5 DOJ 0 5 7 6 9 FTC 0.0% 9.2% 9.5% 13.1% 10.6% DOJ 0.0% 3.5% 4.7% 9.8% 9.6% TOTAL 0.0% 12.8% 14.2% 23.0% 20.2% FTC 0 0 0 1 1 DOJ 0 0 3 1 2 FTC 0.0% 0.0% 0.0% 1.6% 1.1% DOJ 0.0% 0.0% 2.0% 1.6% 2.1% TOTAL 0.0% 0.0% 2.0% 3.3% 3.2% TABLE II FISCAL YEAR 2009 1 2 ACQUISITIONS BY SIZE OF TRANSACTION (CUMULATIVE) HSR TRANSACTIONS TRANSACTION RANGE ($MILLIONS) 4 NUMBER PERCENT CLEARANCE GRANTED TO FTC OR DOJ NUMBER SECOND REQUEST INVESTIGATIONS 3 PERCENTAGE OF TOTAL NUMBER OF CLEARANCES NUMBER PERCENT FTC DOJ FTC DOJ TOTAL FTC DOJ FTC DOJ TOTAL LESS THAN 50 5 4 0.6% 0 0 0.0% 0.0% 0.0% 0 0 0.0% 0.0% 0.0% LESS THAN 100 145 21.2% 13 5 8.4% 3.2% 11.7% 0 0 0.0% 0.0% 0.0% LESS THAN 150 293 42.8% 27 12 17.5% 7.8% 25.3% 0 3 0.0% 9.7% 9.7% LESS THAN 200 354 51.8% 35 18 22.7% 11.7% 34.4% 1 4 3.2% 12.9% 16.1% LESS THAN 300 448 65.5% 45 27 29.2% 17.5% 46.8% 2 6 6.5% 19.4% 25.8% LESS THAN 500 518 75.7% 56 34 36.4% 22.1% 58.4% 3 7 9.7% 22.6% 32.3% LESS THAN 1000 616 90.1% 73 48 47.4% 31.2% 78.6% 5 13 16.1% 41.9% 58.1% ALL TRANSACTIONS 684 98 56 63.6% 36.4% 100.0% 15 16 48.4% 51.6% 100.0% TABLE III FISCAL YEAR 2009 1 TRANSACTIONS INVOLVING THE GRANTING OF CLEARANCE BY AGENCY CLEARANCE GRANTED AS A PERCENTAGE OF: CLEARANCES GRANTED TO AGENCY TRANSACTION RANGE ($MILLIONS) TOTAL NUMBER OF TRANSACTIONS TOTAL NUMBER OF CLEARANCES PER AGENCY TOTAL NUMBER OF CLEARANCES GRANTED 50M - 100M 100M - 150M 150M - 200M 200M - 300M FTC 0 13 14 8 10 DOJ 0 5 7 6 9 TOTAL 0 18 21 14 19 FTC 0.0% 9.2% 9.5% 13.1% 10.6% DOJ 0.0% 3.5% 4.7% 9.8% 9.6% TOTAL 0.0% 12.8% 14.2% 23.0% 20.2% FTC 0.0% 13.3% 14.3% 8.2% 10.2% DOJ 0.0% 8.9% 12.5% 10.7% 16.1% FTC 0.0% 8.4% 9.1% 5.2% 6.5% DOJ 0.0% 3.2% 4.5% 3.9% 5.8% TOTAL 0.0% 11.7% 13.6% 9.1% 12.3% 300M - 500M 500M - 1000M Over 1000M 11 17 25 7 15 7 18 32 32 15.7% 17.0% 37.9% 10.0% 15.0% 10.6% 25.7% 32.0% 48.5% 11.2% 17.3% 25.5% 12.5% 26.8% 12.5% 7.1% 11.0% 16.2% 4.5% 9.7% 4.5% 11.7% 20.8% 20.8% ALL TRANSACTIONS 98 56 154 14.3% 8.2% 22.5% 100.0% 100.0% 63.6% 36.4% 100.0% Below 50M5 TABLE IV FISCAL YEAR 2009 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 50M - 100M 100M - 150M 150M - 200M 200M - 300M FTC 0 0 0 1 1 DOJ 0 0 3 1 2 TOTAL 0 0 3 2 3 FTC 0.0% 0.0% 0.0% 0.1% 0.1% DOJ 0.0% 0.0% 0.4% 0.1% 0.3% TOTAL 0.0% 0.0% 0.4% 0.3% 0.4% FTC 0.0% 0.0% 0.0% 1.6% 1.1% DOJ 0.0% 0.0% 2.0% 3.3% 3.2% TOTAL 0.0% 0.0% 2.0% 4.9% 4.3% FTC 0.0% 0.0% 0.0% 3.2% 3.2% DOJ 0.0% 0.0% 9.7% 3.2% 6.5% TOTAL 0.0% 0.0% 9.7% 6.5% 9.7% 300M - 500M 500M - 1000M Over 1000M 1 2 10 1 6 3 2 8 13 0.1% 0.3% 1.5% 0.1% 0.9% 0.4% 0.3% 1.2% 1.9% 1.4% 2.0% 15.2% 2.9% 8.0% 19.7% 4.3% 10.0% 34.8% 3.2% 6.5% 32.3% 3.2% 19.4% 9.7% 6.5% 25.8% 41.9% ALL TRANSACTIONS 15 16 31 2.2% 2.3% 4.5% 2.2% 2.3% 4.5% 48.4% 51.6% 100.0% Below 50M5 TABLE V FISCAL YEAR 2009 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) 45 6.6% 3 2 6.7% 4.4% 11.1% 0 0 0.0% 0.0% 0.0% $100M (as adjusted) 63 9.2% 3 4 4.8% 6.3% 11.1% 0 1 0.0% 1.6% 1.6% $500M (as adjusted) 8 1.2% 1 2 12.5% 25.0% 37.5% 0 0 0.0% 0.0% 0.0% 25% 4 0.6% 0 0 0.0% 0.0% 0.0% 0 0 0.0% 0.0% 0.0% 50% 324 47.4% 58 37 17.9% 11.4% 29.3% 14 10 4.3% 3.1% 7.4% ASSETS ONLY 240 35.1% 33 11 13.8% 4.6% 18.3% 1 5 0.4% 2.1% 2.5% ALL TRANSACTIONS 684 100.0% 98 56 14.3% 8.2% 22.5% 15 16 2.2% 2.3% 4.5% TABLE VI FISCAL YEAR 2009 1 TRANSACTION BY ASSETS OF ACQUIRING PERSON HSR TRANSACTIONS ASSET RANGE ($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 42 6.1% 1 1 2.4% 2.4% 4.8% 0 0 0.0% 0.0% 0.0% 50M - 100M 15 2.2% 1 0 6.7% 0.0% 6.7% 0 0 0.0% 0.0% 0.0% 100M - 150M 17 2.5% 1 0 5.9% 0.0% 5.9% 0 0 0.0% 0.0% 0.0% 150M - 200M 13 1.9% 1 0 7.7% 0.0% 7.7% 0 0 0.0% 0.0% 0.0% 200M - 300M 17 2.5% 4 0 23.5% 0.0% 23.5% 0 0 0.0% 0.0% 0.0% 300M - 500M 39 5.7% 3 3 7.7% 7.7% 15.4% 0 0 0.0% 0.0% 0.0% 500M - 1000M 66 9.6% 4 1 6.1% 1.5% 7.6% 2 0 3.0% 0.0% 3.0% Over 1000M 475 69.4% 83 51 17.5% 10.7% 28.2% 13 16 2.7% 3.4% 6.1% ALL TRANSACTIONS 684 100.0% 98 56 14.3% 8.2% 22.5% 15 16 2.2% 2.3% 4.5% TABLE VII FISCAL YEAR 2009 1 TRANSACTION BY SALES OF ACQUIRING PERSON HSR TRANSACTIONS SALES RANGE ($MILLIONS) NUMBER PERCENT CLEARANCE GRANTED TO FTC OR DOJ NUMBER PERCENT OF SALES RANGE GROUP SECOND REQUEST INVESTIGATIONS 3 NUMBER PERCENT OF SALES RANGE GROUP FTC DOJ FTC DOJ TOTAL FTC DOJ FTC DOJ TOTAL Below 50M 57 8.3% 1 2 1.8% 3.5% 5.3% 0 0 0.0% 0.0% 0.0% 50M - 100M 21 3.1% 1 0 4.8% 0.0% 4.8% 0 0 0.0% 0.0% 0.0% 100M - 150M 22 3.2% 3 0 13.6% 0.0% 13.6% 0 0 0.0% 0.0% 0.0% 150M - 200M 22 3.2% 0 0 0.0% 0.0% 0.0% 0 1 0.0% 4.5% 4.5% 200M - 300M 27 3.9% 2 0 7.4% 0.0% 7.4% 0 0 0.0% 0.0% 0.0% 300M - 500M 32 4.7% 4 1 12.5% 3.1% 15.6% 1 0 3.1% 0.0% 3.1% 500M - 1000M 51 7.5% 6 5 11.8% 9.8% 21.6% 1 1 2.0% 2.0% 3.9% Over 1000M 424 62.0% 80 48 18.9% 11.3% 30.2% 13 14 3.1% 3.3% 6.4% Sales Not Available 7 28 4.1% 1 0 3.6% 0.0% 3.6% 0 0 0.0% 0.0% 0.0% ALL TRANSACTIONS 684 100.0% 98 56 14.3% 8.2% 22.5% 15 16 2.2% 2.3% 4.5% TABLE VIII FISCAL YEAR 2009 1 TRANSACTION BY ASSETS OF ACQUIRED ENTITIES8 HSR TRANSACTIONS ASSET RANGE ($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 78 11.4% 8 8 10.3% 10.3% 20.5% 1 1 1.3% 1.3% 2.6% 50M - 100M 96 14.0% 13 6 13.5% 6.3% 19.8% 0 2 0.0% 2.1% 2.1% 100M - 150M 65 9.5% 13 4 20.0% 6.2% 26.2% 1 2 1.5% 3.1% 4.6% 150M - 200M 31 4.5% 2 1 6.5% 3.2% 9.7% 0 0 0.0% 0.0% 0.0% 200M - 300M 47 6.9% 8 4 17.0% 8.5% 25.5% 0 1 0.0% 2.1% 2.1% 300M - 500M 62 9.1% 9 3 14.5% 4.8% 19.4% 0 1 0.0% 1.6% 1.6% 500M - 1000M 60 8.8% 10 5 16.7% 8.3% 25.0% 3 2 5.0% 3.3% 8.3% Over 1000M 148 21.6% 24 17 16.2% 11.5% 27.7% 7 6 4.7% 4.1% 8.8% Assets Not Available 8 97 14.2% 11 8 11.3% 8.2% 19.6% 3 1 3.1% 1.0% 4.1% ALL TRANSACTIONS 684 100.0% 98 56 14.3% 8.2% 22.5% 15 16 2.2% 2.3% 4.5% TABLE IX FISCAL YEAR 2009 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 112 16.4% 11 11 9.8% 9.8% 19.6% 1 3 0.9% 2.7% 3.6% 50M - 100M 85 12.4% 10 6 11.8% 7.1% 18.8% 1 0 1.2% 0.0% 1.2% 100M - 150M 56 8.2% 5 2 8.9% 3.6% 12.5% 0 0 0.0% 0.0% 0.0% 150M - 200M 50 7.3% 7 3 14.0% 6.0% 20.0% 0 1 0.0% 2.0% 2.0% 200M - 300M 61 8.9% 9 5 14.8% 8.2% 23.0% 1 0 1.6% 0.0% 1.6% 300M - 500M 60 8.8% 10 4 16.7% 6.7% 23.3% 1 0 1.7% 0.0% 1.7% 500M - 1000M 58 8.5% 10 6 17.2% 10.3% 27.6% 1 2 1.7% 3.4% 5.2% Over 1000M 153 22.4% 28 17 18.3% 11.1% 29.4% 10 8 6.5% 5.2% 11.8% Sales not Available 10 49 7.2% 8 2 16.3% 4.1% 20.4% 0 2 0.0% 4.1% 4.1% ALL TRANSACTIONS 684 100.0% 98 56 14.3% 8.2% 22.5% 15 16 2.2% 2.3% 4.5% TABLE X FISCAL YEAR 2009 1 INDUSTRY GROUP OF ACQUIRING PERSON 3 DIGIT NAICS CODE 11 000 13 112 113 211 212 213 221 236 237 238 311 312 322 324 325 326 327 331 332 333 334 INDUSTRY DESCRIPTION Not Available Animal Production Forestry and and Logging Oil and Gas Extraction Mining (except Oil and Gas) Support Activities for Mining Utilities Construction of Buildings Heavy and Civil Engineering Construction Specialty Trade Contractors Food and Kindred Products Beverage and Tobacco Product Manufacturing Paper Manufacturing Petroleum and Coal Products Manufacturing Chemical Manufacturing Plastics and Rubber Manfuacturing Nonmetallic Mineral Product Manufacturing Primary Metal Manufacturing Fabricated Metal Product Manufacturing Machinery Manufacturing Computer and Electronic Product Manufacturing NUMBER 4 PERCENT OF TOTAL CHANGE FROM FY 2007 12 CLEARANCE GRANTED TO FTC OR DOJ SECOND REQUEST INVESTIGATIONS 3 FTC DOJ TOTAL FTC DOJ TOTAL 37 5.4% -2.6% 2 0 2 0 0 0 2 0.3% 0.2% 0 1 1 0 0 0 1 0.1% 0.1% 0 0 0 0 0 0 5 0.7% -0.7% 0 0 0 0 0 0 3 0.4% -0.3% 2 0 2 1 0 1 2 0.3% -0.7% 0 1 1 0 0 0 19 2.8% 0.2% 1 1 2 0 1 1 3 0.4% 0.1% 0 0 0 0 0 0 3 0.4% -0.2% 0 0 0 0 0 0 1 0.1% -0.5% 0 0 0 0 0 0 9 1.3% -0.2% 3 1 4 0 1 1 4 0.6% 0.2% 1 0 1 0 0 0 2 0.3% -0.5% 0 0 0 0 0 0 5 0.7% 0.3% 2 0 2 0 0 0 60 8.8% 3.5% 19 1 20 5 0 5 8 1.2% 0.2% 0 2 2 0 1 1 1 0.1% -0.8% 0 0 0 0 0 0 7 1.0% -0.7% 1 3 4 0 1 1 9 1.3% -0.3% 1 1 2 0 0 0 9 1.3% -1.4% 1 2 3 0 1 1 27 3.9% 0.8% 8 2 10 3 0 3 TABLE X FISCAL YEAR 2009 1 INDUSTRY GROUP OF ACQUIRING PERSON 3 DIGIT NAICS CODE 11 335 336 337 339 422 423 424 441 444 445 446 447 448 451 454 481 484 486 493 511 512 INDUSTRY DESCRIPTION Electrical Equipment, Applicance, and Component Manufacturing Transportation Equipment Manufacturing Furniture and Related Product 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 Sporting Goods, Hobby, Book, and Music Stores Nonstore Retailers Air Transportation Truck Transportation Pipeline Transportation Warehousing and Storage Publishing Industries (except Internet) Motion Pictures and Sound Recording Industries NUMBER 4 PERCENT OF TOTAL CHANGE FROM FY 2007 12 CLEARANCE GRANTED TO FTC OR DOJ SECOND REQUEST INVESTIGATIONS 3 FTC DOJ TOTAL FTC DOJ TOTAL 5 0.7% -0.3% 0 1 1 0 0 0 23 3.4% 1.6% 3 3 6 0 0 0 2 0.3% 0.0% 1 0 1 1 0 1 6 0.9% -0.1% 1 0 1 2 0 2 1 0.1% 0.1% 0 0 0 0 0 0 39 5.7% -0.8% 8 1 9 0 0 0 35 5.1% 1.0% 12 2 14 2 0 2 2 0.3% 0.1% 0 0 0 0 0 0 1 0.1% -0.1% 1 0 1 0 0 0 1 0.1% -0.2% 0 0 0 0 0 0 1 0.1% -0.2% 1 0 1 0 0 0 6 0.9% 0.8% 2 0 2 1 0 1 2 0.3% 0.1% 0 0 0 0 0 0 1 0.1% 0.1% 1 0 1 0 0 0 4 0.6% 0.2% 1 2 3 0 0 0 6 0.9% 0.5% 1 1 2 0 1 1 1 0.1% 0.0% 1 0 1 0 0 0 2 0.3% 0.0% 0 0 0 0 0 0 1 0.1% -0.2% 0 0 0 0 0 0 24 3.5% -0.1% 0 6 6 0 4 4 3 0.4% 0.0% 0 0 0 0 0 0 TABLE X FISCAL YEAR 2009 1 INDUSTRY GROUP OF ACQUIRING PERSON 3 DIGIT NAICS CODE 11 515 517 518 519 521 522 523 524 525 531 532 533 541 561 562 611 621 622 624 711 713 INDUSTRY DESCRIPTION Broadcasting (except Internet) Telecommunications Internet Service Providers, Web Search Portals, and Data Processing Services Other Information Services Monetary Authorities - Central Bank 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 Administrative and Support Services Waste Management and Remediation Services Educational Services Ambulatory Health Care Services Hospitals Social Assistance Performing Arts, Spector Sports, and Related Industries Amusement, Gambling, and Recreation Industries NUMBER 4 PERCENT OF TOTAL CHANGE FROM FY 2007 12 CLEARANCE GRANTED TO FTC OR DOJ SECOND REQUEST INVESTIGATIONS 3 FTC DOJ TOTAL FTC DOJ TOTAL 5 0.7% 0.2% 0 0 0 0 0 0 20 2.9% 0.4% 0 4 4 0 2 2 4 0.6% 0.0% 0 1 1 0 0 0 3 0.4% 0.3% 0 2 2 0 0 0 1 0.1% 0.1% 0 0 0 0 0 0 25 3.7% 1.2% 0 2 2 0 1 1 77 11.3% 0.0% 1 2 3 0 1 1 37 5.4% 1.5% 3 3 6 0 0 0 20 2.9% 0.9% 0 3 3 0 0 0 4 0.6% -0.1% 0 0 0 0 0 0 3 0.4% -0.3% 1 0 1 0 0 0 3 0.4% 0.1% 0 0 0 0 0 0 38 5.6% 0.3% 4 3 7 0 0 0 8 1.2% -0.8% 1 2 3 0 1 1 2 0.3% -0.4% 0 2 2 0 1 1 3 0.4% 0.2% 0 0 0 0 0 0 3 0.4% -0.1% 1 1 2 0 0 0 17 2.5% 1.3% 10 0 10 0 0 0 2 0.3% -0.3% 0 0 0 0 0 0 3 0.4% 0.1% 0 0 0 0 0 0 1 0.1% -0.3% 0 0 0 0 0 0 TABLE X FISCAL YEAR 2009 1 INDUSTRY GROUP OF ACQUIRING PERSON 3 DIGIT NAICS CODE 11 721 722 811 812 813 923 924 999 INDUSTRY DESCRIPTION Accommodation Food Services and Drinking Places Repairt and Maintenance Personal and Laundry Services Religious, Grantmaking, Civic, Professional, and Similar Organizations Administration of Human Resource Programs Administration of Environmental Quality Programs Nonclassificable Establishments NUMBER 4 PERCENT OF TOTAL CHANGE FROM FY 2007 12 CLEARANCE GRANTED TO FTC OR DOJ SECOND REQUEST INVESTIGATIONS 3 FTC DOJ TOTAL FTC DOJ TOTAL 3 0.4% 0.3% 0 0 0 0 0 0 5 0.7% 0.0% 0 0 0 0 0 0 1 0.1% 0.0% 1 0 1 0 0 0 2 0.3% 0.1% 2 0 2 0 0 0 2 0.3% 0.3% 0 0 0 0 0 0 1 0.1% 0.1% 0 0 0 0 0 0 2 0.3% 0.2% 0 0 0 0 0 0 6 0.9% -2.0% 0 0 0 0 0 0 684 100.0% 98 56 154 15 16 31 TABLE XI 1 FISCAL YEAR 2009 INDUSTRY GROUP OF ACQUIRED ENTITIES 3 DIGIT NAICS 11 CODE INDUSTRY DESCRIPTION 4 NUMBER CHANGE PERCENT FROM FY 12 OF TOTAL 2007 CLEARANCE GRANTED TO FTC OR DOJ NUMBER OF 3 DIGIT SECOND REQUEST 3 INTRAINVESTIGATIONS INDUSTRY TRANSACTIONS 14 FTC DOJ TOTAL FTC DOJ TOTAL 3.2% 5 1 6 0 0 0 0 0.1% -0.1% 0 0 0 0 0 0 1 6 0.9% -1.4% 0 0 0 0 0 0 1 Mining (except Oil and Gas) 8 1.2% 0.3% 2 0 2 1 0 1 3 213 Support Activities for Mining 6 0.9% -0.5% 0 1 1 0 0 0 1 221 Utilities 29 4.2% -1.1% 0 2 2 0 1 1 14 Construction of Buildings 2 0.3% 0.1% 0 0 0 0 0 0 1 Heavy and Civil Engineering Construction 6 0.9% 0.4% 0 0 0 0 0 0 3 Specialty Trade Contractors 3 0.4% -0.2% 0 0 0 0 0 0 0 Food and Kindred Products 15 2.2% 0.6% 2 1 3 0 1 1 6 Beverage and Tobacco Product Manufacturing 6 0.9% 0.5% 2 0 2 0 0 0 4 313 Textile Mills 1 0.1% -0.2% 0 0 0 0 0 0 0 315 Apparel Manufacturing 1 0.1% 0.0% 0 0 0 0 0 0 0 Wood Product Manufacturing 1 0.1% -0.1% 0 0 0 0 0 0 0 Paper Manufacturing 1 0.1% -1.2% 0 1 1 0 0 0 0 Printing and Related Support Actitivies 1 0.1% -0.7% 0 0 0 0 0 0 0 Petroleum and Coal Products Manufacturing 3 0.4% -0.1% 2 0 2 0 0 0 2 Chemical Manufacturing 42 6.1% -0.1% 16 0 16 5 0 5 17 326 Plastics and Rubber Manfuacturing 12 1.8% -0.7% 1 2 3 0 1 1 2 327 Nonmetallic Mineral Product Manufacturing 2 0.3% -0.5% 0 0 0 0 0 0 1 Primary Metal Manufacturing 2 0.3% -1.3% 0 1 1 0 1 1 0 Not Available 35 5.1% Forestry and and Logging 1 Oil and Gas Extraction 212 000 13 113 211 236 237 238 311 312 321 322 323 324 325 331 TABLE XI 1 FISCAL YEAR 2009 INDUSTRY GROUP OF ACQUIRED ENTITIES 3 DIGIT NAICS 11 CODE INDUSTRY DESCRIPTION 4 NUMBER CHANGE PERCENT FROM FY 12 OF TOTAL 2007 CLEARANCE GRANTED TO FTC OR DOJ NUMBER OF 3 DIGIT SECOND REQUEST 3 INTRAINVESTIGATIONS INDUSTRY TRANSACTIONS 14 FTC DOJ TOTAL FTC DOJ TOTAL -0.9% 2 1 3 0 0 0 2 2.0% -0.2% 1 2 3 0 1 1 6 21 3.1% -0.5% 4 3 7 3 0 3 8 3 0.4% -0.4% 0 1 1 0 0 0 2 19 2.8% 0.4% 4 0 4 0 0 0 6 Furniture and Related Product Manufacturing 2 0.3% 0.0% 1 0 1 1 0 1 2 Miscellaneous Manufacturing 8 1.2% -0.7% 5 0 5 2 0 2 2 Wholesale Trade 2 0.3% 0.3% 1 0 1 0 0 0 0 Wholesale Trade, Nondurable Goods 1 0.1% 0.1% 0 0 0 0 0 0 0 Merchant Wholesalers, Durable Goods 37 5.4% -1.0% 9 2 11 0 0 0 17 Merchant Wholesales, Nondurable Goods 38 5.6% 1.7% 8 2 10 2 0 2 11 441 Motor Vehicle and Parts Dealers 2 0.3% -0.6% 0 0 0 0 0 0 0 445 Food and Beverage Stores 8 1.2% 0.8% 3 0 3 0 0 0 1 Gasoline Stations 3 0.4% -0.1% 2 0 2 1 0 1 2 Clothing and Clothing Accessories Stores 6 0.9% 0.0% 0 0 0 0 0 0 2 Sporting Goods, Hobby, Book, and Music Stores 5 0.7% 0.4% 1 0 1 0 0 0 1 Nonstore Retailers 5 0.7% -0.1% 2 0 2 0 0 0 1 Air Transportation 3 0.4% 0.0% 0 0 0 0 1 1 3 483 Water Transportation 2 0.3% -0.2% 0 0 0 0 0 0 0 484 Truck Transportation 1 0.1% -0.4% 0 0 0 0 0 0 0 Pipeline Transportation 4 0.6% 0.2% 0 0 0 0 0 0 2 332 333 334 335 336 337 339 421 422 423 424 447 448 451 454 481 486 Fabricated Metal Product Manufacturing 7 1.0% Machinery Manufacturing 14 Computer and Electronic Product Manufacturing Electrical Equipment, Applicance, and Component Manufacturing Transportation Equipment Manufacturing TABLE XI 1 FISCAL YEAR 2009 INDUSTRY GROUP OF ACQUIRED ENTITIES 3 DIGIT NAICS 11 CODE INDUSTRY DESCRIPTION 4 NUMBER CHANGE PERCENT FROM FY 12 OF TOTAL 2007 CLEARANCE GRANTED TO FTC OR DOJ NUMBER OF 3 DIGIT SECOND REQUEST 3 INTRAINVESTIGATIONS INDUSTRY TRANSACTIONS 14 FTC DOJ TOTAL FTC DOJ TOTAL -0.1% 0 0 0 0 0 0 0 4.1% -1.3% 1 2 3 0 4 4 13 5 0.7% -0.2% 0 0 0 0 0 0 1 Broadcasting (except Internet) 9 1.3% 0.3% 0 1 1 0 0 0 2 516 Internet Publishing and Broadcasting 2 0.3% -0.2% 0 0 0 0 0 0 0 517 Telecommunications 23 3.4% 0.3% 0 6 6 0 2 2 9 Internet Service Providers, Web Search Portals, and Data Processing Services Other Information Services 8 1.2% -1.2% 0 4 4 0 0 0 1 2 0.3% 0.3% 0 1 1 0 0 0 1 Credit Intermediation and Related Activities 27 3.9% 0.9% 0 3 3 0 1 1 12 Securitites, Commodity Contracts, and Other Financial Investments and Related Activities Insurance Carriers and Related Actitivities 26 3.8% 1.1% 0 2 2 0 1 1 10 33 4.8% 1.6% 3 4 7 0 0 0 19 525 Funds, Trusts, and Other Financial Vehicles 2 0.3% 0.1% 0 1 1 0 0 0 0 532 Rental and Leasing Services 11 1.6% 0.4% 2 0 2 0 0 0 2 Lessors of Nonfinancial Intangible Assets (except Copyrighted Works) Professional, Scientific, and Technical Services 3 0.4% -0.6% 0 0 0 0 0 0 0 50 7.3% 1.4% 1 8 9 0 0 0 14 Administrative and Support Services 12 1.8% 0.4% 0 1 1 0 1 1 2 Waste Management and Remediation Services 5 0.7% 0.2% 0 2 2 0 1 1 2 Educational Services 3 0.4% 0.0% 0 0 0 0 0 0 0 621 Ambulatory Health Care Services 7 1.0% -0.4% 3 1 4 0 0 0 2 622 Hospitals 17 2.5% 2.1% 9 0 9 0 0 0 15 Performing Arts, Spector Sports, and Related Industries 3 0.4% -0.1% 0 0 0 0 0 0 0 Warehousing and Storage 1 0.1% Publishing Industries (except Internet) 28 Motion Pictures and Sound Recording Industries 515 493 511 512 518 519 522 523 524 533 541 561 562 611 711 TABLE XI 1 FISCAL YEAR 2009 INDUSTRY GROUP OF ACQUIRED ENTITIES 3 DIGIT NAICS 11 CODE INDUSTRY DESCRIPTION 4 NUMBER CHANGE PERCENT FROM FY 12 OF TOTAL 2007 CLEARANCE GRANTED TO FTC OR DOJ NUMBER OF 3 DIGIT SECOND REQUEST 3 INTRAINVESTIGATIONS INDUSTRY TRANSACTIONS 14 FTC DOJ TOTAL FTC DOJ TOTAL 0.2% 0 0 0 0 0 0 1 0.3% -0.2% 0 0 0 0 0 0 1 10 1.5% 0.8% 0 0 0 0 0 0 0 Repairt and Maintenance 1 0.1% -0.3% 1 0 1 0 0 0 1 812 Personal and Laundry Services 3 0.4% 0.3% 2 0 2 0 0 0 2 999 Nonclassificable Establishments 14 2.0% 2.0% 3 0 3 0 0 0 0 684 100.0% 98 56 154 15 16 31 234 Amusement, Gambling, and Recreation Industries 3 0.4% Accommodation 2 Food Services and Drinking Places 811 713 721 722 1 Fiscal year 2009 figures include transactions reported between October 1, 2008 and September 30, 2009. 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 2009, 716 transactions were reported under the HSR Premerger Notification program. The smaller number, 684, reflects the adjustments to eliminate the following types of transactions: (1) transactions reported under Section 7A(c)(6) and (c)(8) (transactions involving certain regulated industries and financial businesses); (2) transactions deemed non-reportable; (3) incomplete transactions (only one party in each transaction filed a compliant notification); and (4) transactions withdrawn before the waiting period began. The table does not, however, exclude competing offers or multiple HSR transactions resulting from a single business transaction (where there are multiple acquiring persons or acquired persons). 5 The total number of filings under $50M submitted in Fiscal Year 2009 is corrective filings. 6 In February 2001, legislation raised the size of transaction from $15 million to $50 million with annual adjustments beginning in February 2005. 7 The category labeled “Sales Not Available” includes newly-formed acquiring persons, foreign acquiring person with no United States revenues, and acquiring persons who had not derived any revenues from their investments at the time of filing. 8 Assets of an acquired entity are not available when the acquired entity’s financial data is consolidated within its ultimate parent. 9 Sales 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 2008 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A3d3e0515d49fc1d8. Public record. Not legal advice.