# ELEVENTH ANNUAL REPORT (1988) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A8e27cd9fa62c469a ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text = =p ELEVENTH ANNUAL REPORT TO CONGRESS PURSUANT TO SECTION 201 OF THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976 (Fiscal Year 1988) DUCTION section 201 of the Hart-Scott-Rodino Antitrust Improvements act of 1976, Pub. L. 94-435, amended the Clayton Act py adding 4 new Section 7A, 15 U.S.C. Section 18a ("the Act")- Subsection (j) of Section 7A provides as follows: Beginning not later than January 1, 1978, the Federal Trade Commission, with the concurrence of the Assistant Attorney General, shall annually report to the Congress on the operation of this section. Such report shall include an assessment of the effects of this thereto, and any recommendations for revisions of this section. This is the eleventh annual report to Congress pursuant to this provision. It covers fiscal year 1988. In general, Section 7A requires that certain proposed acquisitions of stock or assets must be reported to the Federal Trade Commission and the Department of Justice prior to consummation. The parties must then wait a specified period, usually thirty days (fifteen days in the case of a cash tender offer), before they may complete the transaction. Whether 4 particular acquisition is subject to these requirements depends upon the value of the acquisition and the size of the parties, as measured by their sales and assets. small acquisitions, acquisitions involving small parties and other classes of acquisitions that are less jikely 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 to conduct this antitrust review. Much of the information needed for a preliminary antitrust evaluation is included in the notification filed with the agencies and thus is immediately available for review during the waiting period. If either agency determines during the waiting period that further inquiry is necessary, it is authorized by Section 7A(e) to request additional information of documentary materials from either or poth of the parties to a reported transaction. Such a request extends the waiting period for a specified period, usually twenty days, after the requested information and documents are received. This additional time provides the ¥ agencies with the opportunity to review the information and to take appropriate action before the transaction is consummated. If either agency believes that a proposed transaction may violate the antitrust laws, the agency may seek an injunction in federal district court to prohibit consummation of the transaction. Final rules implementing the premerger notification program were promulgated by the Commission, with the concurrence of the Assistant Attorney General, on July 31, 1978.° At that time, 4 comprehensive Statement of Basis and Purpose was also published containing 4 section-by-section analysis of the rules and an item-by-item analysis of the Premerger Notification and Report Form. The program became effective on September 5, 1978. In. 1983, the Commission, with the concurrence of the Assistant attorney General, made several changes in the premerger notification rules. Those amendments became effective on August 29, 1983.7 Additional amendments were published in the Federal Register on March 6, 1987, and May 29, 1987." 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 aA shows for each fiscal year in which the program has been in operation the number of transactions reported,” the number of , 43 Fed. Reg- 33,450 (1978). The rules also appear in 16 C.F.R. Parts 801 through 803. For more information concerning the development of the rules and operating procedures of the premerger notification program, see the second, third and seventh annual reports covering the years 1978, 1979 and 1983, respectively. 2 48 Fed. Reg. 34,427 (1983) (codified at 16 C.F-R- Parts B01 through 803). ; 52 Fed. Reg. 7,066 (1987) (codified at 16 C.F-R. Parts 801 through 803). ‘ 54 Fed. Reg. 20,058 (1987) (codified at 16 C.F.R. Parts 801 through 803). 5 The term "transactions," a5 used in Appendices A, B, and C and Exhibits A and B to this report, does not refer to separate mergers or deals; rather, it refers to types of structures such as cash tender offers, options to acquire voting securities from the issuer, options to acquire voting securities from someone other than the issuer, and multiple acquiring or acquired persons that necessitate separate HSR identification (continued...) filings received, the number of merger investigations in which requests for additional information or documentary material (hereinafter referred to as "second request[s]") were issued, and the number of transactions in which requests for early termination of the waiting period were received, granted, and not granted. Appendix A also shows for calendar years 1981 through . 1984 and fiscal years 1985 through 1988 the number of transactions in which second requests could have been issued. (This information appears on Appendix C and is explained in footnote 1 of that appendix.) Appendix B provides a month-bymonth comparison of the number of filings received (Table 1) and the number of transactions reported (Table 2) for fiscal years 1979 through 1988. Appendix C shows, for calendar years 1981 through 1984 and fiscal years 1985 through 1988, the number of transactions in which the agencies could have issued second requests, the number of merger investigations in which second requests were issued, and the percentage of transactions in which second requests were issued. As we explained in the Eighth Annual Report, we believe that Appendix C provides a more meaningful measure of the second request rate than Appendix A because Appendix C eliminates from the total number of transactions certain transactions in which the agencies could not, or as a practical matter would not, issue second requests. The information regarding second requests in Appendices A and °C differs from that reported in those appendices in prior annual reports. Appendices A and C in prior reports identified the number of transactions in which a second request was issued . while Appendices A and C in the present report show the number of merger investigations in which second requests were issued. A merger investigation may include several transactions, @.g., a cash tender offer, an option to acquire shares from the acquired person, and an option to acquire shares from shareholders. We believe that reporting the number of merger investigations in which second requests were issued better reflects the agencies’ -enforcement activities because it represents the number of mergers or acquisitions that were investigated under the Act by the agencies. The statistics set out in the appendices show that the number of transactions reported in 1988 increased approximately 8.4 percent over the number of transactions reported in 1987 *(,...continued) numbers to track the filing parties and waiting periods. As described below, a particular merger or deal may involve more than one "transaction." Indeed, some have involved as many as four or five "transactions." 6 See Appendix C, note l. (2,746 transactions were reported in 1988 while 2,533 were reported in 1987). The statistics in Appendix A also show that the number of merger investigations in which second requests were issued in 1988 increased approximately 17.2 percent over the number of merger investigations in which second requests were issued in 1987 (second requests were issued in 68 merger investigations in 1988 while second requests were issued in 58 in 1987). These numbers indicate a slight increase in the number of merger investigations in which second requests were issued as a percentage of reported transactions from 1987 to 1988 (from 2.3 percent in 1987 to 2.5 percent in 1988, based on Appendix A, and from 2.7 percent in 1987 to 2.8 percent in 1988, based on Appendix C). The statistics also show that in recent years, early termination is requested for most transactions.’ In 1988, early -termination was requested in 88.9 percent (2,440) of the transactions reported, while in 1987 it was requested in 89.3 percent (2,264) of the transactions reported. Although the number of requests granted has increased (from 1,752 in 1987 and to 1,885 in 1988), the percentage of requests granted has remained steady (77.3 percent in 1987 and 77.2 percent in 1988). We have also included in the report, as Exhibits A and B, statistical tables containing information about the agencies.’ enforcement interest in transactions reported in fiscal years 1987 and 1988. Both exhibits present eleven tables that provide, for various statistical break downs, 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; the number of transactions based on the dollar value of transactions reported and the reporting threshold indicated in the notification; the number of transactions based on the sales or assets of the acquiring person or the sales or assets of the acquired entity; and the number of transactions based on the industry group (2-digit SIC code) in which the acquiring person or the acquired entity derived most of their revenues. These 7 As noted in the Seventh Annual Report, the increase in the number of requests for early termination and the high proportion of those requests that have been granted are probably attributable to the change in the agencies' standard for granting early termination, adopted in the formal interpretation issued by the Commission on August 20, 1982. 4 Statistics have been included in prior annual reports for the calendar years 1981-1984, and for fiscal year 1985. DEVELOPMENTS IN FY 1988 RELATING TO PREMERGER NOTIFICATION RULES AND PROCEDURES , ; 1. Proposed Rule Change On September 22, 1988, the Commission, with the concurrence of the Department of Justice, published in the Federal Register a Notice of Proposed Rulemaking regarding acquisitions of 10 percent or less of an issuer's voting securities.” The Notice set out one principal proposal and two alternative approaches to revising the rules. The principal proposal would exempt from the requirements of the Act acquisitions that resulted in the acquiror holding 10 percent or less of an issuer's voting securities which are valued at more than $15 million. Currently, such acquisitions are exempt from the Act's requirements under Section 7A(c)(9) of the Act and § 802.9 of the premerger notification rules if the acquiror intends to hold the voting securities "solely for the purpose of investment." Voting securities are held "solely for the purpose of investment" if the acquiror "has no intention of participating in the formulation, determination, or direction of the basic business decisions of the issuer." - The alternative proposals involved an escrow arrangement and a modified optional notification form. The escrow proposal would permit an acquiror to purchase, but not take possession of, 10 percent or less of an issuer's voting securities valued at more than $15 million without first filing notification provided the securities were held in escrow and the acquiror did not exercise the power to vote the shares. The acquiror would be required to file notification prior to taking the shares out of escrow and prior to acquiring more than 10 percent of the issuer's shares. 8 See the Tenth Annual Report, Exhibit A, for fiscal year 1985, the Ninth Annual Report, Exhibit A, for calendar year 1984 transactions, the Eighth Annual Report, Exhibit A, for calendar year 1983 transactions, the Seventh Annual Report, Exhibit B for Calendar year 1982 transactions, and the Sixth Annual Report, Exhibit A for calendar year 1981 transactions. Due to resource constraints, statistics for fiscal year 1986 have not been prepared. ? 53 Fed. Reg. 36,831 (1988). 10 16 C.F.R. § 801.1(i)(1). 5 The optional modified notification proposal would permit an acquiror to file notification for acquisitions resulting in an acquiror holding 10 percent or less of an issuer's voting securities valued at more than $15 million without notifying the acquired person prior to filing. Currently, § 803.5(a) of the premerger notification rules requires an acquiring person, inter alia, to notify the acquired person of its intention to make an acquisition and its intention to file notification before it makes its filing. Under this optional system, an acquiror would have to submit specified public documents describing the entity to be acquired, but would not have to give the acquired person notice under rule 803.5(a). This optional modified notification would be available only for acquisitions of the voting securities of companies that file Schedule 10-K's with the Securities and Exchange Commission and have publicly available annual reports. Eighteen public comments regarding these proposed changes were received. The Commission has no action pending or planned at this time regarding this rulemaking. 2. Reinstatement of Dairy Merger Reporting Program On September 6, 1988, the Commission reinstated its dairy merger reporting program. The Commission had established this program in 1974, and suspended it in 1981. Under this program, dairy processors over a certain size must file reports 60 days before they acquire companies with. fluid milk processing or distribution facilities within a 250 mile radius of similar facilities of the acquiring firm, and. before they acquire companies that have a certain sales volume. Merging dairy firms are exempted from filing a report under this program if they are required to report the transaction under the HSR premerger notification program. 3. Premergqer Notificatio ource Boo On November 13, 1987, the Commission announced that it had prepared and had available for purchase through the U.S. Government Printing Office the "Premerger Notification Source Book." This book has collected into a single volume a large number of materials concerning the premerger notification program, all of which had been previously published separately. The Source Book contains the following materials: - Section 201 of the Hart-Scott-Rodino Antitrust Improvements Act (15 U.S.C. § 18a), which established the program; ~ the Commission's premerger notification rules, including | the most recent amendments; - copies of most of the Federal Register notices concerning the rules and amendments, including the Commission's statements of basis and purpose for the rules and amendments; - all formal interpretations of the rules; ~ Bureau of Competition statements concerning enforcement of the premerger notification rules; and - the Tenth Annual Report to Congress on the premerger notification program. 4. ompliance Fiscal year 1988 was a very significant year for HSR noncompliance actions. At the Commission's request, the Department of Justice filed five complaints” alleging that a total of six corporations and three individuals had violated the premerger notification requirements of the Act by failing to comply with reporting and waiting period requirements before consummating certain stock acquisitions. Under Section 7A(g)(1) of the Act, any person or company that fails to comply with the Act's notification and waiting period requirements is liable for a civil penalty of up to $10,000 for each day the violation continues. In each case, the Division filed a proposed consent decree simultaneously with the complaint. Only two other enforcement actions have been brought under Section 7A(g) (1) since the program's inception. ut United States v. Wickes Companies, Inc., 1988-1 Trade Cases ¢ 67,966 (D.D.C. 1988); United States v. First City Financial Corporation Ltd. and Roxboro Investments (1976) Ltd., 1988-1 Trade Cases q 67,967 (D.D.C. 1988); United States v. Donald J. Trump, 1988-1 Trade Cases ¢ 67,968 (D.D.C. 1988); United States v. Roscoe Moss Corporation and Roscoe Moss Jr., 1988-1 Trade Cases q 68,040 (D.D.C. 1988); and United States v. Lonrho, PLC, Lonrho, Inc., Robert 0. Anderson, and Diamond A. Cattle Company, 1988-2 Trade Cases ¢ 68,232 (D.D.C. 1988). 12 One action, United States v. Coastal Corporation, 1985- Under 1 Trade Cases q 66,425 (D.D.C. 1984), was filed in 1984. the terms of the consent decree, Coastal agreed to pay a civil penalty of $230,000, the maximum civil penalty authorized. Coastal also divested the stock that it was alleged to have acquired illegally. The other action, United States v. Bell (continued...) In United States v. Wickes Companies, Inc., the complaint alleged that Wickes violated the Act from July 18 through September 2, 1986, when it acquired stock of Owens-Corning Fiberglas Corporation of Toledo, Ohio, through its agent, the investment banking firm of Bear, Stearns & Company. This was the first case brought concerning the use of an investment banking firm to avoid filing notification required by the Act. Wickes sells lumber and other building material. Under the terms of the consent decree, Wickes agreed to pay a civil penalty of $300,000 to settle the case. In ited States v. First City Financia orporation Ltd. and Roxboro Investments (1976) Ltd., the complaint alleged that First City Financial and Roxboro Investments violated the Act from February 19 through April 2, 1986, when they acquired stock of Ashland Oil, Inc., of Russell, Kentucky, through their agent, the investment banking firm of Bear, Stearns & Company. First City provides diversified financial services, as well as general leasing services. Roxboro is a holding company affiliated with First City. Under the terms of the consent decree, First City Pinancial and Roxboro Investments agreed to pay a civil penalty of $400,000 to settle the case. In United States v. Donald J. Trump, a two-count complaint was filed alleging that Donald J. Trump of New York City violated the Act from August 22 through November 9, 1986, when he acquired stock of Holiday Corporation of Memphis, Tennessee, and from: November 13, 1986, through January 22, 1987, when he acquired stock of Bally Manufacturing Corporation of Chicago. Both acquisitions were made through Trump's agent, the investment: banking firm of Bear, Stearns & Company. Trump is a real estate developer who also owns and operates casinos. Under the terms of the consent decree, Trump agreed to pay a civil penalty of $750,000 to settle the case. In United States v. Roscoe Moss Corporation and Roscoe Moss Jr., the complaint alleged that Roscoe Moss Corporation of Los Angeles and its Chairman and CEO, Roscoe Moss, Jr., violated the Act from December 1, 1984 through March 26, 1986, when they acquired stock of San Jose Water Company. Roscoe Moss Corporation is engaged in the manufacture of steel tubular products for use in water wells and transmission lines. Under 2 .,.continued) Resources LTD., Weeks Petroleum LTD., and M.R.H. Holmes a Court, 1986-2 Trade Cases { 67,321 (S.D.N.Y. 1985), was filed in 1985. Under the terms of the consent decree, Weeks agreed to pay a Civil penalty of $450,000. the terms of the consent decree, the defendants agreed to pay a. civil penalty of $500,000 to settle the case. ; In United States v. Lonrho, Inc., Robert O. Anderson, and Diamond A Cattle Company, the complaint alleged that the defendants violated the Act from October 21 through December 27, 1986, in connection with the acquisition by Lonrho, Inc., of more than $15 million worth of voting securities of Diamond A Cattle Company. Lonrho, Inc., is a U.S. holding company that is whollyowned by Lonrho, PLC, a British firm that has mining, agricultural and other business interests. Diamond A Cattle is a privately-held firm engaged primarily in ranching. Under the terms of the consent decree, the defendants agreed to pay a total of $244,000 as civil penalties to settle the case. ; In addition to these civil penalty actions, on April 26, 1988, the Commission filed an action in federal district court, under Section 7A(g)(2) of the Act, against McCormick & Co., Inc., for failure to comply with a request for additional information and documentary material.” The court issued an order prohibiting McCormick and Specialty Brands from consummating their proposed transaction until 20 days after McCormick complied with the Commission's request for additional information. This is the first case litigated under Section 7A(g)(2) of the Act. In addition to the enforcement actions brought this year, the agencies monitored compliance by reviewing newspapers and industry publications for announcements of transactions that may not have been reported in accordance with the requirements of the Act. Industry sources, such as competitors, customers and suppliers, and interested members of the public often provide the agencies with further information about transactions and possible violations of the filing requirements. If a proposed transaction is announced that appears to be covered by the statute and rules, but filings are not received within a reasonable time, Commission staff sends letters to the parties requesting an explanation for their failure to file. The same procedure is followed when the staff learns of a consummated transaction for which no prior filing was received. In most of these cases, the inquiries have established that the transactions were not covered by the Act or were exempt from it. 8 Federal Trade Commission v. McCormick & Co., Inc., 1988-1 Trade Cases ( 67,976 (D.D.C. 1988). 9 MERGER ENFORCEMENT ACTIVITY DURING Fy 1988" 1. Department of Justice The Antitrust Division filed six complaints in merger cases during fiscal year 1988. ‘Three of these cases, U.S. v. Westi ouse ectric Corp. en ectrica ipment a erican Properties Corp., United States v. BNS Inc. ford-Hi ompa n¢c., and United States v. Waste Management, Inc., Industrial Disposal Service, Richard R. Clark and Andrew A. Clark, were settled by the entry of consent decrees. In United States v. Lewis M. Manderson, Jr., and Patrick Media Group of Atlanta, Inc., the Division voluntarily dismissed the lawsuit when the proposed transaction was abandoned by the parties. In United States v. Lewis M. Manderson, Jr., and Patrick Media Group of Atlanta, Inc., the Division challenged the proposed acquisition of Patrick Media Group of Atlanta, Inc., by Lewis M. Manderson, Jr., controlling owner of Turner Outdoor Advertising, Ltd. The complaint alleged that the proposed acquisition might substantially lessen competition in the market for outdoor advertising in the Atlanta area. Sales of outdoor advertising in Atlanta in 1986 totalled more than $28 million. Turner Outdoor Advertising was the largest provider of billboards for outdoor advertising in metropolitan Atlanta and Patrick Media Group was the second largest. The acquisition would have raised Turner's share of outdoor advertising in the Atlanta area from 48 “ The cases mentioned in this report were not necessarily reportable under the premerger notification program. Because of the Hart-Scott-Rodino Act's provisions regarding the confidentiality of the information obtained pursuant to this program, it would be inappropriate to identify which transactions were reported under the premerger notification program. b United States v. Lewis M. Manderson, Jr., and Patrick Media Group of Atlanta, Inc., Cv. No. C87-2239A (N.D. Ga. filed October 9, 1987); United States v. Westinghouse Electric Corp., Challenger Electrical Equipment Corp. and American Properties Corp., Cv. No. 87-3528 (W.D. Pa. filed December 30, 1987); United States v. BNS Inc. and Gifford-Hill & Company, Inc., Cv. No. 88 01452MRP(BX) (C.D. Cal. filed March 18, 1988); United States v. Carilion Health System and Community Hospital of Roanoke Valley, Cv. No. 88-0249-R (W.D. Va. filed May 27, 1988); United States v. Rockford Memorial Corporation and SwedishAmerican Corporation, ‘Cv. No. 88-C-20186 (N.D. Ill. filed June 1, 1988); and United States v. Waste Management, Inc., Industrial Disposal Service, Richard R. Clark, and Andrew A. Clark, Cv. No. SA88CA0911 (W.D. Tex. filed September 1, 1988). 10 percent to approximately 68 percent. The Division dismissed the suit after being advised that Manderson had terminated the contract to acquire Patrick Media Group and that Mr. Manderson did not intend to acquire Patrick Media Group's assets in the future. In United States v. Westinghouse Electric Corp., Challenger Electrical Equipment Corp. and American Properties Co -, the Division challenged the acquisition by Westinghouse Electric Corp. of Challenger Electrical Equipment Corp., alleging that the proposed combination of the residential circuit breaker businesses of the two companies would violate Section 7 of the Clayton Act. A circuit breaker is an electrical device that acts as a safety switch by interrupting the flow of power in the event of a power overload. In 1986, approximately $360 million in residential circuit breakers were sold in the United States. Challenger and Westinghouse were the third and fifth largest suppliers of residential circuit breakers in the United States. The final. judgment required Challenger to divest itself of its circuit breaker plant in Albemarle, North Carolina. In Unite tates v. BNS Inc. and Gifford-Hill ompan inc., the Division alleged that the proposed acquisition by BNS of Koppers Company would lessen competition in the market for the extraction, processing and sale of aggregate rock, sand and gravel used mainly in making concrete and as-a road base in highway construction in portions of Los Angeles County and Orange County, California. Total annual sales of aggregate in the Los Angeles and Orange Counties area in 1987 were approximately $100 million. Gifford-Hill (an affiliate of BNS), through a wholly owned subsidiary, Livingston-Graham, Inc., of Irwindale, California, and Koppers, through a wholly-owned subsidiary, Blue Diamond Materials of Irwindale, California, both operated aggregate extraction and processing facilities in Irwindale, California. Livingston-Graham and Blue Diamond were two of the four largest producers of aggregate in this area. The consent decree required BNS and Gifford-Hill & Company to divest Kopper's Irwindale, California, Blue Diamond Materials aggregate facility. In United States v. Carilion Health stem_and Communit Hospital of Roanoke Valley, the Division filed suit under Section 7 of the Clayton Act and Section 1 of the Sherman Act to block a proposed merger of Carilion Health Services, Inc. (which operates Roanoke Memorial Hospital) and Community Hospital of Roanoke Valley. Both hospitals were nonprofit. Roanoke Memorial Hospital and Community Hospital of Roanoke Valley were the first and third largest general acute-care hospitals serving the Roanoke Valley area of Virginia. There was only one other acutecare hospital in Roanoke, the Lewis-Gale Hospital. In 1987, the three Roanoke hospitals had in-patient revenues of about $212 million. On September 30, 1988, the Section 7 count was 11 dismissed by. the judge on jurisdiction grounds. The government lost the trial and subsequent appeal of the Section 1 count. In United States v. Rockford Memorial Corporation and SwedishAmerican Corporation, the Division challenged the merger of Rockford Memorial Corporation (operator of the Rockford Memorial Hospital) and the SwedishAmerican Corporation (operator of the SwedishAmerican Hospital), the largest hospitals in Rockford. Both corporations were nonprofit. There was only one other general acute-care hospital in Rockford, St. Anthony Medical Center. Total in-patient revenues of the three Rockford hospitals were about $163 million in 1987. The Division's motion for preliminary injunction was combined with the trial on the merits, which was held from June 20 through July 14, 1988, and the government won. The defendants appealed and lost. nite tates v. Waste agement, Inc. dus Disposal Service, Richard R. Cla and Andrew A. Clark, the Division challenged the proposed acquisition of Industrial Disposal Service (IDS) by Waste Management, Inc., (WMI) alleging a lessening of competition in the market for commercial containerized solid waste hauling services in Bexar County, Texas. Commercial containerized waste hauling service is a dumpster service used by most commercial customers, such as . restaurants, office buildings and stores. In 1986, WMI had total revenues of over $2 billion from solid waste hauling and disposal and approximately $5 million in revenues from the San Antonio area in 1987. IDS, which operated only in the San Antonio area, had 1987 revenues of over $17.5 million. In 1987, WMI accounted for approximately 16 percent and IDS for 48 percent of commercial containerized hauling revenues in Bexar County. The consent decree required WMI to divest its solid waste hauling business in San Antonio, Texas, and its interest in an all-purpose landfill permit and site (Buffalo Valley). During fiscal year 1988, the Division investigated bank merger transactions for which divestitures were required to cure competitive problems. In the following three transactions, a "not significantly adverse" letter was sent to the Federal Reserve Board, conditioned on divestiture prior to or concurrent with consummation of the transaction: 1. Fleet Financial Group, Inc., Providence, Rhode Island, merger with Norstar Bancorp, Inc., Albany, New York; 2. Integra Financial Corporation, Mt. Lebanon, Pennsylvania, acquisition of Pennbancorp, Titusville, Pennsylvania, and Union National Corporation, Mt. Lebanon, Pennsylvania; and 12 3. Boatmen's Bancshares, Inc., St. Louis, Missouri, acquisition of Centerre Bancorporation, St. Louis, Missouri. Finally, on five occasions the Antitrust Division informed the parties to a proposed transaction that it would file suit challenging the transaction unless the parties restructured the proposal to avoid competitive problems or abandoned the proposal altogether.” The parties abandoned the proposed transactions. 2. The Federal Trade Commission The Commission authorized its staff to seek preliminary injunctions in eleven merger cases in fiscal year 1988. In nine of these cases, the parties abandoned the transaction before the motion for preliminary injunction was filed in court. In 6 Department of Justice press release issued November 10, 1987, involving the proposed joint venture of Engelhard Corporation with Floridin Company (a subsidiary of Rio Tinto- Zinc); Department of Justice press release issued November 23, 1987, involving the proposed acquisition of Autotote. Systems, Inc., by General Instrument Corporation; Department of Justice press release issued May 20, 1988, involving the proposed acquisition of Thermco Systems, Inc., by BTU Engineering Corporation; Department of Justice press release issued May 26, 1988, involving the proposed acquisition of Bumble Bee Seafoods, Inc:, by J. Heinz Company; and Department of Justice press release issued September 16, 1988, involving the proposed joint venture of Ivaco, Inc., with Jackson. Jordan, Inc. ad FTC news release issued November 16, 1987, involving the proposed acquisition by Dun & Bradstreet Corp. of Information Resources, Inc. The press release reported that the Commission had reason to believe that the proposed acquisition would substantially reduce competition in syndicated national tracking services, which are methods of tracking products that consumers buy. Dun & Bradstreet and Information Resources were two of the three companies providing this service. FTC news release issued January 27, 1988, involving the proposed acquisition by American Maize-Products Co. of U.S. Tobacco Company's dry snuff assets. The press release reported that the Commission had reason to believe that the acquisition would substantially reduce competition in the production and sale of dry snuff. American Maize-Products, through its subsidiary, was the second largest dry snuff producer in an industry dominated by four firms. U.S. Tobacco was the third largest producer. (continued...) 13 “7. ,,continued) FTC news release issued February 17, 1988, involving the proposed acquisition by James River Corporation of Princeton Packaging, Inc. The press release reported that the Commission had reason to believe that the proposed acquisition would substantially reduce competition in the manufacture and sale of frozen food, film and bakery bags. James River and Princeton were the two largest U.S. producers of printed frozen food film. This food film is formed into plastic bags used for frozen food packaging. The two companies were also two of the top three producers of printed bread bags. FTC news release issued March 21, 1988, involving the proposed acquisition by Browning-Ferris Industries, Inc., of Inland Refuse Transfer Co., Inc., Inland Reclamation, Inc., and Solon Sanitary Landfill, Inc., from their co-owners James and Jon Pallidino. The press release reported that the Commission had reason to believe that the acquisition would substantially lessen competition in the solid waste disposal market in northeastern Ohio by giving Browning-Ferris control of four of the nine solid waste disposal sites (landfills) in the Cleveland area that were available to commercial customers. pa FTC news release issued April 29, 1988, involving the proposed acquisition by Schering-Plough Corp. of The Cooper - Companies Inc.'s contact lens assets. The press release stated that the Commission had reason to believe that the proposed acquisition would substantially reduce competition in the manufacture and sale of soft contact lenses. The two firms were among the top five producers and sellers of soft contact lenses. FTC news release issued May 23, 1988, involving the proposed acquisition by McCormick & Co., Inc., of the Spice Island assets of Specialty Brands, Inc. The press release reported that the Commission had reason to believe that the acquisition would substantially reduce competition in the production and sale of spices. FTC news release issued July 27, 1988, involving the proposed acquisition by SPX Corp. of Stanadyne Holding Corp.'s valve lifter assets. The press release reported that the Commission had reason to believe that this acquisition would substantially reduce competition in the manufacture and sale of hydraulic valve lifters. Valve lifters, also called "tappets" or "lifters", are part of the valve train in the engines of cars and light trucks. SPX and Stanadyne were two of only four companies in the U.S. that produced hydraulic valve lifters for these types of engines. (continued...) 14 Federal Trade Commission v. Owens-Illinois, Inc., °° the Commission filed for a preliminary injunction alleging that the proposed acquisition by Owens-Illinois of Brockway, Inc., would substantially lessen competition in the manufacture and sale of glass containers. Owens-Illinois and Brockway were the second and third largest manufacturers of glass containers for food, beverages and other products in the United States. The Commission's motion for preliminary injunction was denied. parties consummated the transaction on April 12, 1988. The Commission also issued an administrative complaint. On September 11, 1989, the Administrative Law Judge issued an initial decision finding that the transaction violated Section 7 of the Clayton Act.” “The matter is on appeal to the Commission. In Federal Trade Commission v. Illinois Cereal Mills, -Inc.,”° the Commission filed for a preliminary injunction alleging that Illinois Cereal Mills' acquisition of Lincoln Grain Co. from Elders Grain, Inc., would substantially reduce competition in the production and sale of dry corn mill products. The Commission requested preliminary relief seeking either rescission or the appointment of a receiver to manage the acquired assets until the matter was resolved in an administrative proceeding. This case is the first time the Commission has sought rescission of a merger transaction under Section 13(b) of the Federal Trade Commission Act. Prior to closing, the parties had been asked to postpone consummation because of the Commission's "serious reservations" about the merger's legality. The parties elected to consummate their transaction, closing on a Sunday afternoon, and the Commission The » 7, . continued) FTC news release issued October 3, 1988, involving the proposed acquisitions by McKesson Corp. of Alco Health Services Corp. and Northwestern Drug Co. The press release reported that the Commission had reason to believe that each acquisition would substantially reduce competition in wholesale drug distribution and the related services provided by wholesalers. The Commission authorized staff to seek preliminary injunctions to enjoin both transactions on September 30. The parties abandoned the transactions the following week (in fiscal year 1989). 18 Federal Trade Commission v. Owens-Illinois, Inc., 681 F. Supp. 27 (D.D.C. 1988). 19 Owens-Illinois, Inc. (issued September 11, 1989). 20 Federal Trade Commission v. Illinois Cereal Mills, Inc., 691 F.Supp. 1131 (N.D. Ill. 1988), aff'd sub nom., Federal Trade Commission v. Elders Grain, Inc., 868 F.2d 901 (1989). 15 filed its complaint the next day. The court ordered the parties to rescind the acquisition. The court's decision was affirmed on appeal. The Commission also issued an administrative complaint in this matter. On March 12, 1990, the Commission issued a decision and order settling the charges against Illinois Cereal Mills that requires Illinois Cereal Mills to obtain Commission approval before acquiring any assets of or an interest in any company in the industrial dry corn milling industry. The complaint against Elders Grain was dismissed by the Commission on May 3, 1990. In addition,. a case in which the Commission authorized staff ‘to seek a preliminary injunction in fiscal year 1987 was resolved in fiscal year 1988. In Federal Trade Commission v. Pacific Resources, Inc.,~” the Commission filed for a preliminary injunction, in the U.S. District Court for the Western District of Washington, alleging that the proposed acquisition by Pacific Resources, Inc., of Shell Oil Company's Hawaiian petroleum products and gasoline assets would substantially reduce competition in the distribution of gasoline and other petroleum fuels in Hawaii. The court granted the preliminary injunction on November 6, 1987. The Commission also issued an administrative complaint in this matter. On August 29, 1988, the Commission accepted a consent agreement for public, comment and issued a. decision and order on November 4, 1988.” the order requires. Pacific Resources to obtain Commission approval before acquiring certain terminal, refining, or gasoline retailing assets in the state of Hawaii. In fiscal year 1988, the Commission also issued an administrative complaint against Coca-Cola Company of the Southwest alleging that its 1984 acquisition of the Dr Pepper and Canada Dry franchises and related assets from San Antonio Dr Pepper Bottling Company substantially lessened competition in the production, distribution, and sale of soft drinks in the San Antonio area. The matter is in litigation before an Administrative Law Judge. 21 Illinois Cereal Mills, Inc., Docket No. D. 9213 (issued March 12, 1990). 22 Federal Trade Commission v. Pacific Resources, Inc., Cv. No. C87-1390C (W.D. Wash. filed October 15, 1987; preliminary injunction order entered November 6, 1987). 23 Pacific Resources, Inc., 111 F.T.C. 322 (1988). 24 Coca-Cola Bottling Company of the Southwest, Docket No. D 9215 (complaint issued July 29, 1988). 16 The Commission issued a complaint and decision and order in three other merger cases in fiscal year 1988 in which it had previously accepted consent agreements for public comment. In supermarket Development Corporation, the complaint alleged that Supermarket Development's acquisition of Safeway's Ei Paso Division in south and west Texas and New Mexico would substantially lessen competition in the retail sale and distribution of food and grocery items in retail grocery stores in west Texas and New Mexico. The order requires Supermarket Development to hold separate the El Paso Division until certain of its assets are divested. In The Vons Companies, Inc., the complaint alleged that the acquisition by Vons of three Safeway Divisions in southern California and Nevada would substantially lessen competition in the retail sale and distribution of food and grocery items in retail grocery stores in southern California. Under the order, Vons was permitted to acquire the ‘Safeway divisions after Vons and Safeway divested 12 grocery stores in southern California. In American Stores Company, the complaint alleged that American Stores’ acquisition of Lucky Stores, Inc., would substantially lessen competition in the retail sale and distribution of food and grocery items in retail stores in sections of California and parts of Illinois, Iowa, and Indiana. Under the consent, American was allowed to acquire Lucky Stores subject to its divestiture of between 31 and 37 grocery stores in California and Lucky's interest in a partnership that operated grocery stores in the Midwest. In fiscal year 1988, the Commission also accepted for public comment a consent agreement with West Point-Pepperell, Inc., concerning its acquisition of J.P. Stevens & Co., Inc. The consent became final on December 14, 1988, when the Commission issued a complaint and decision and order. The complaint alleged that West Point-Pepperell's acquisition of J.P.Stevens would substantially lessen competition in the manufacture, distribution, and sale of sheets and towels in the United States. Under the order, West Point was required to operate most of the J.P. Stevens assets as an independent business until it made certain divestitures of sheet and towel assets.’ In two merger cases in which the administrative complaint was issued before October 1, 1987, the Commission issued a decision and order. In B.F. Goodrich Company ,”’ the Commission found that B.F. Goodrich's acquisition of certain assets of 2 Supermarket Development Corporation, 110 F.T.C. 369 (1988); The Vons Companies, Inc., 111 F.T.C. 64 (1988); and American Stores Company, 111 F.T.C. 80 (1988). 26 West Point-Pepperell, Inc., 111 F.T.C. 349 (1988). 2 B.F. Goodrich Company, 110 F.T.C. 207 (1988). 17 ‘ z i é a Diamond Shamrock would substantially lessen competition in the production of vinyl chloride monomer (VCM). The Commission dismissed that part of the complaint which alleged that the acquisition would substantially reduce competition in the production of polyvinyl chloride (PVC). VCM is used to make PVC, which in turn is used to produce a broad spectrum of plastic products, ranging from irrigation pipes to phonograph records. The Commission ordered B.F. Goodrich to divest a vinyl chloride monomer (VCM) plant in La Porte, Texas, and, for a period of ten years, to receive FTC approval before acquiring any interest in any producer of VCM located in the United States. In Occidental Petroleum Co oration,” the Commission issued a decision and order involving the acquisition by Occidental Petroleum Corp. of Tenneco Polymers, Inc., from Tenneco, Inc. In 1986, the Commission had issued an administrative complaint against Occidental Petroleum and Tenneco, Inc., charging that the acquisition would substantially reduce competition in the production of three polyvinyl chloride (PVC) resin product markets. The order requires Tenneco to abide by any divestiture order issued by the Commission against Occidental and to reacquire a PVC plant in Burlington, New Jersey, from Occidental if divestiture is ordered. The matter remains in adjudication with respect to Occidental, the acquiring person. ~ ASSESSMENT OF THE EFFECTS OF THE PREMERGER NOTIFICATION PROGRAM Although a complete assessment of the effect of the premerger notification program on the business community and on antitrust enforcement is not possible in this limited report, the following observations can be made. First, as indicated in past annual reports, one of the premerger notification program's primary objectives, eliminating the so-called "midnight merger," has been achieved. The requirement that parties file and wait ensures that virtually all significant mergers or acquisitions occurring 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. Second, in most cases the parties provide sufficient information to allow the enforcement agencies to determine promptly whether a transaction raises any antitrust problems. In addition, over the years, parties have increasingly supplied information voluntarily to the Commission and the Antitrust 28 Occidental Petroleum Corporation, 111 F.T.C. 27 (1988). 18 Division. This cooperation has resulted in fewer second requests than would otherwise have been necessary. Finally, the existence of the premerger notification program alerts businesses to the antitrust concerns raised by proposed transactions. In addition, the greatly increased probability that antitrust violations will be detected prior to consummation may deter some competitively questionable transactions. 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 adequately consider their competitive effects. The enforcement agencies were forced to pursue lengthy postacquisition litigation during the course of which the consummated transaction continued in place (and afterwards as well, where effective post-acquisition relief was not possible or available). Because the premerger notification program requires reporting before consummation, this problem has been significantly reduced. The Acting Assistant Attorney General of the Antitrust Division concurs with this annual report. Insert date JW27 108 19 Appendix A Appendix B Appendix C Exhibit A Exhibit B List of Appendices Summary of Transactions, Fiscal Years 1979-. 1988. . Number of Filings Received and Transactions Reported by Month for Fiscal Years 1979-1988. Investigations in Which Additional Information Was Requested. Calendar Years 1981-1984 and Fiscal Years 1985-1988. List of Attachments Statistical tables for fiscal year 1987, presenting data profiling Hart-Scott-Rodino premerger notification filings and enforcement interest. 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O°y 98 It or TL SST 9T Lz S°6T ez zz OT 6" ¥z Ors 6t kz 0°1z SSP 9 9°6 goz fod Old /Sinaduaa /Puaanon uadHON SNOILOVSNVUL U-8-H Cod YO BLa OL G4LNVUD AONVUVATD _ (a9nNwa azIs xa) /@ MOLLOVSNWUL 40 4zIS 1a SNOILISIOODOW /€ ce6t uvax qosta g@30U}003 aYyL s SNOILOVSNVUL TIv df GNV 000T OOOT OL aN 00g 00S OL df O0€ O0E€ OL dN 002 00% OL dN OST OST OL dN OOT OOT OL dN 0¢ ( suoriiins ) @DNVE NOLLOVSNWUL I aque [OCR skipped on page(s) 31-67] [Read from a scan; the first 30 pages.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aftc%3A8e27cd9fa62c469a. Public record. Not legal advice.