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DEPARTMENT OF JUSTICE

BUREAU OF COMPETITION

ANTITRUST DIVISION

hart-scott-rodino annual report

Fiscal Year 2012

Section 7A of the Clayton Act

Hart-Scott-Rodino Antitrust Improvements Act of 1976

(Thirty-Fifth Annual Report)

Edith Ramirez

William J. Baer

Chairwoman

Federal Trade Commission

Assistant Attorney General

Antitrust Division

INTRODUCTION

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

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

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

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

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

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

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

20121 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 2012, 1,429 transactions were reported under the HSR Act,

representing about a 1.4% decrease from the 1,450 transactions reported in fiscal year 2011.

(See Figure 1 below.)

The fiscal year covers the period of October 1, 2011 through September 30, 2012.

During fiscal year 2012, the Commission brought 25 merger enforcement actions,2

including three in which the Commission initiated administrative litigation; 15 in which it

accepted consent orders for public comment, 14 of which resulted in final orders (with one still

pending), and seven in which the transactions were abandoned or restructured as a result of

antitrust concerns raised during the investigation. These enforcement actions preserved

competition in numerous sectors of the economy, including pharmaceuticals, hospital and other

health care providers, industrial and high tech goods, energy, and retailing. In two of the cases in

which the Commission issued administrative complaints, the Commission sought preliminary

injunctions in federal district court to enjoin the acquisitions pending resolution of the

Commission’s administrative litigation.

One of the Commission’s notable challenges was against OSF Healthcare System’s

proposed acquisition of rival hospital services provider, Rockford Health in Rockford, Illinois.

On April 5, 2012, the U.S. District Court for the Northern District of Illinois, Western Division,

granted a preliminary injunction to halt the transaction, pending the FTC’s administrative

proceeding and any subsequent appeals. The Commission also challenged Graco, Inc.’s

acquisition of its largest and most significant competitor in the market for equipment used to

apply paints and other liquid finishes to a variety of manufactured goods. While the

Commission’s request for a preliminary injunction was pending in federal district court, the

Commission agreed to resolve the litigation with a consent order. Other enforcement matters

resulted in the issuance of consent orders designed to preserve competition in the pharmaceutical

sector, including challenges to acquisitions by Valeant Pharmaceuticals International and the

Teva Pharmaceutical Industries/Cephalon merger. In the energy industry, the Commission

challenged Kinder Morgan’s acquisition of natural gas pipelines, gas processing plants, and

associated storage capacity in the Rocky Mountain region. In the high technology sector, the

Commission required Western Digital Corporation to divest assets before consummating its

acquisition of Hitachi Global Storage, its worldwide rival in desktop hard disk drives. These

merger challenges and others are summarized in the Merger Enforcement Activity section found

later in this report. In fiscal year 2012, the Commission also pursued appeals on litigation begun

in previous fiscal years, including cases against Polypore International/Daramic LLC, ProMedica

Health System/St. Luke’s Hospital, and Phoebe Putney Health System/Palmyra Park Hospital.

The case against the Phoebe Putney Health System acquisition is particularly notable in that on

February 19, 2013 in a unanimous opinion, the Supreme Court ruled that the state action doctrine

did not immunize Phoebe Putney Health System, Inc.’s acquisition of its sole rival in Albany,

Georgia, Palmyra Park Hospital, Inc., from the federal antitrust laws. The FTC alleged that the

deal would create a monopoly and allow the combined Phoebe/Palmyra to raise prices for

general acute-care hospital services charged to commercial health plans, harming patients and

local employers and employees. The Supreme Court’s decision reverses a decision of the 11th

Circuit Court of Appeals and remands the case for further proceedings.

During fiscal year 2012, the Antitrust Division challenged 19 merger transactions that it

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

eight of these challenges, the Antitrust Division filed a complaint in U.S. district court. In all

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

Commission took its first public action during fiscal year 2012.

eight court challenges, the parties filed settlement papers simultaneously with the complaint.

Seven of these court challenges were ultimately settled by consent decree, and in the other court

challenge, the parties abandoned the transaction and the Division filed a notice with the court

withdrawing the complaint and proposed settlement. In the eleven challenges in which the

Antitrust Division did not file a complaint during fiscal year 2012, when apprised of the

Division’s concerns regarding their proposed transactions, the parties in six instances abandoned

the proposed transaction, in two instances restructured the proposed transaction and in three

instances changed their conduct to avoid competitive problems, thus resolving the Division’s

concerns.

One of the notable matters handled by the Division was United Technologies

Corporation’s $18.4 billion acquisition of Goodrich Corporation. The transaction was the largest

merger in the history of the aircraft industry. As originally proposed, the acquisition would have

resulted in higher prices, less favorable contractual terms and less innovation for several critical

aircraft components. The Division challenged the merger in U.S. district court, and the

subsequent settlement required UTC to divest assets used in the production of electrical power

systems and aircraft engine control systems. The Division, the European Commission, and the

Canadian Competition Bureau cooperated closely throughout the course of their respective

investigations, with frequent contact among the agencies. The Division also had discussions

with other competition agencies, including the Federal Competition Commission in Mexico and

the Administrative Council for Economic Defense in Brazil. In addition to UTC, the Division

challenged a number of mergers that would have had a direct effect on the pocketbooks of U.S.

consumers. The Division challenged, and reached pro-competitive settlements, in mergers

involving sliced bread (United States v. Grupo Bimbo, et al.), electricity (United States v. Exelon

Corporation, et al.), health insurance (United States v. Humana Inc., et al.) and parking services

(United States v. Standard Parking Corporation, et al.). Additionally, 3M Co. abandoned its

proposed $550 million acquisition of Avery Dennison Corp.’s Office and Consumer Products

Group, its closest competitor in the sale of adhesive-backed labels and sticky notes, after the

Division informed the companies that it would file a lawsuit to block the deal. The transaction

would have substantially lessened competition in the sale of labels and sticky notes, resulting in

higher prices and reduced innovation for products that millions of American consumers use

every day.

In fiscal year 2012, the Commission’s Premerger Notification Office (PNO) continued to

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

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

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

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

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

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

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

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

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

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

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

Web users can also find up-to-date information, including speeches, press releases, summaries

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

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

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

to help HSR practitioners comply with HSR notification requirements.

BACKGROUND OF THE HSR ACT

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

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

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

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

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

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

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

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

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

excluded from the Act’s coverage.

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

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

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

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

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

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

is immediately available for review during the waiting period.

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

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

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

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

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

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

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

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

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

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

transaction in administrative litigation.

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

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

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

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

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

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

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

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

of complying with the rules.4

A STATISTICAL PROFILE OF THE PREMERGER NOTIFICATION PROGRAM

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

premerger notification program. Appendix A shows, for the ten-year period covering fiscal

years 2003-2012, 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 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 2003 through 2012.

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

fiscal year 2012 decreased 1.4% from the number of transactions reported in fiscal year 2011. In

fiscal year 2012, 1,429 transactions were reported, while 1,450 were reported in fiscal year

2011.6 The statistics in Appendix A also show that the number of merger investigations in which

second requests were issued in fiscal year 2012 decreased 10.9% from the number of merger

investigations in which second requests were issued in fiscal year 2011.7 Second requests were

issued in 49 merger investigations in fiscal year 2012 (20 issued by the FTC and 29 issued by the

43 Fed. Reg. 34443 (Aug. 4, 1978); 43 Fed. Reg. 36053 (Aug. 15, 1978); 44 Fed. Reg. (Nov. 21, 1979);

45 Fed. Reg. 14205 (Mar. 5, 1980); 48 Fed. Reg. 34427 (July 29, 1983); 50 Fed. Reg. 46633 (Nov. 12, 1985); 51

Fed. Reg. 10368 (Mar. 26, 1986); 52 Fed. Reg. 7066 (Mar. 6, 1987); 52 Fed. Reg. 20058 (May 29, 1987); 54 Fed.

Reg. 214251 (May 18, 1989); 55 Fed. Reg. 31371 (Aug. 2, 1990); 60 Fed. Reg. 40704 (Aug. 9, 1995); 61 Fed. Reg.

13666 (Mar. 28, 1996); 63 Fed. Reg. 34592 (June 25, 1998); 66 Fed. Reg. 8680 (Feb. 1, 2001); 66 Fed. Reg. 8723

(Feb. 1, 2001); 66 Fed. Reg. 16241 (Mar. 23, 2001); 66 Fed. Reg. 23561 (May 9, 2001); 66 Fed. Reg. 35541 (July 6,

2001); 67 Fed. Reg. 11898 (Mar. 18, 2002); 67 Fed. Reg. 11904 (Mar. 18, 2002); 68 Fed. Reg. 2425 (Jan. 17, 2003);

70 Fed. Reg. 4988 (Jan. 31, 2005); 70 Fed. Reg. 11501 (Mar. 8, 2005); 70 Fed. Reg. 11526 (Mar. 8, 2005); 70 Fed.

Reg. 47733 (Aug. 15, 2005); 70 Fed. Reg. 73369 (Dec. 12, 2005; 70 Fed Reg. 77312 (Dec. 30, 2005); 71 Fed. Reg.

2943 (Jan. 18, 2006); 71 Fed. Reg. 35995 (June 23, 2006); 72 Fed. Reg. 2692 (Jan. 22, 2007); 75 Fed. Reg. 57110

(Sept. 17, 2010); 76 Fed. Reg. 42471 (July 19, 2011).

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

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

involves more than one filing that must be made under the HSR Act.

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

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

calculation of that data). There were 1,400 adjusted transactions in fiscal year 2012, and the data presented in the

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

requests) are based on this figure.

For fiscal year 2011, DOJ has corrected its previously published number of investigations in which

second requests were issued from 34 to 31 investigations, resulting in the total number of investigations in which

second requests were issued in fiscal year 2011 to change from 58 to 55. DOJ also corrected this number for fiscal

year 2010 in Appendix A.

Division), while second requests were issued in 558 merger investigations in fiscal year 2011 (24

issued by the FTC and 31 issued by the Division). The percentage of transactions in which a

second request was issued decreased from 3.9% in 2011 to 3.5% in 2012.9 (See Figure 2 below.)

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

requested in the majority of transactions. In fiscal year 2012, early termination was requested in

78% (1,094) of the transactions reported; in fiscal year 2011, early termination was requested in

82% (1,157) of the transactions reported. The percentage of requests granted out of the total

requested increased from 77% in fiscal year 2011 to 82% in fiscal year 2012.

The tables (Tables I through XI) in Exhibit A contain information about the agencies’

enforcement activities for transactions reported in fiscal year 2012. The tables provide, for

Id.

With the correction made by DOJ to its fiscal year 2011 data, the percentage of transactions resulting in

second requests issued by DOJ changed from 2.4% to 2.2%, thus changing the total percentage of transactions

resulting in second requests from either agency in fiscal year 2011 from 4.1% to 3.9%.

Figure 2 reflects the corrections of the previously published DOJ number of investigations in which

second requests were issued from 34 to 31 investigations in fiscal year 2011 and from 26 to 22 in fiscal year 2010.

Therefore, the percentage of transactions in which a second request was issued by either agency changed from 4.1%

to 3.9% for fiscal year 2011 and from 4.1% to 3.7% for fiscal year 2010.

various categories of transactions, 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 2012, clearance was granted to either of the agencies for the purpose of conducting an initial

investigation in 14.7% of the total number of the transactions reported. The tables also provide

the number of transactions based on the dollar value of transactions reported and the reporting

threshold indicated in the notification report. In fiscal year 2012, the dollar value of reported

transactions was $921 billion.11

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 2012 based on the

acquired entity’s operations.12

The information on the value of reported transactions for fiscal year 2012 is drawn from a database

maintained by the Premerger Notification Office.

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

performing arts, recreation, and non-classifiable establishments.

DEVELOPMENTS WITHIN THE PREMERGER PROGRAM

Issuance of Proposed Rules

On August 13, 2012, the Commission issued a Notice of Proposed Rulemaking13

proposing changes to the premerger notification rules. The proposed rules aim to provide a

framework for determining when a transaction involving the transfer of rights to a patent in the

pharmaceutical (including biologics and medicine manufacturing) industry constitutes an asset

acquisition and thus is potentially reportable under the HSR Act. The comment period ended on

October 25, 2012.

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 2012. The agencies monitor compliance through a

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

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

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

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

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

requirements.

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

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

day the violation continues.14 The antitrust agencies examine the circumstances of each violation

to determine whether penalties should be sought.15 During fiscal year 2012, 60 corrective filings

for violations were received, and the agencies brought two enforcement actions, resulting in

$1,350,000 in civil penalties.

In United States v. Brian L. Roberts,16 the complaint alleged that Brian Roberts, the

Chief Executive Officer of Comcast Corporation, failed to comply with the HSR Act’s

premerger notification requirements before acquiring Comcast voting securities as part of his

compensation beginning in 2007. Although this was the first time that Roberts had been charged

http://ftc.gov/opa/2013/02/hsr.shtm

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 (Apr.

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 (Oct. 21, 1996),

corrected at 61 Fed. Reg. 55840 (Oct. 29, 1996)) and to $16,000 effective February 10, 2009 (74 Fed. Reg. 857 (Jan.

9, 2009)).

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

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

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

United States v. Brian L. Roberts, No. 1:11-CV-02240 (D.D.C. filed Dec. 16, 2011).

with an HSR Act violation, he had twice previously made corrective filings for what he claimed

were inadvertent failures to file. Under the terms of a consent decree filed simultaneously with

the complaint and entered by the court on December 28, 2011, Roberts agreed to pay a $500,000

civil penalty to settle the charges.

In United States v. Biglari Holdings, Inc.,17 the complaint alleged that Biglari Holdings,

Inc. failed to comply with premerger notification requirements before acquiring voting securities

of Cracker Barrel Old Country Store, Inc. in June of 2011. Although the HSR Act exempts

certain acquisitions “solely for the purpose of investment,” according to the complaint, Biglari

Holdings’ acquisitions did not qualify for this exemption. Under the terms of the consent decree

filed simultaneously with the complaint and pending with the court, Biglari Holdings agreed to

pay an $850,000 civil penalty to settle the charges.

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 27, 2012, the Commission published a notice18 to reflect adjustment of

reporting thresholds as required by the 2000 amendments19 to Section 7A of the Clayton Act, 15

U.S.C. §18a. The revised threshold, which increased from $66 million to $68.2 million, became

effective February 27, 2012.

MERGER ENFORCEMENT ACTIVITY20

The Department of Justice

During fiscal year 2012, the Antitrust Division challenged 19 merger transactions that it

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

eight of these challenges, the Antitrust Division filed a complaint in U.S. district court. In all

eight court challenges, the parties filed settlement papers simultaneously with the complaint.

Seven of these court challenges were ultimately settled by consent decree, and in the other court

challenge, the parties abandoned the transaction and the Division filed a notice with the court

United States v. Biglari Holdings, Inc., No. 1:12-CV-01586 (D.D.C. filed Sept. 25, 2012).

77 Fed. Reg. 4323 (Jan. 27, 2012).

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

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

Given the confidentiality of information obtained pursuant to the Act, it would be inappropriate to identify the cases

initiated under the program except in those instances in which that information has already been disclosed.

withdrawing the complaint and proposed settlement. In the eleven challenges where the

Antitrust Division did not file a complaint during fiscal year 2012, when apprised of the

Division’s concerns regarding their proposed transactions, the parties in six instances abandoned

the proposed transaction, in two instances restructured the proposed transaction and in three

instances changed their conduct to avoid competitive problems, thus resolving the Division’s

concerns.21

In United States v. Grupo Bimbo, S.A.B. de C.V., BBU, Inc. and Sara Lee

Corporation,22 the Division challenged the proposed acquisition of the North American fresh

bakery business of Sara Lee Corporation by Grupo Bimbo S.A.B. de C.V. and BBU, Inc.,

(collectively “BBU”). The complaint alleged that the acquisition, as originally proposed, would

eliminate substantial head-to-head competition in the sale of sliced bread sold in retail stores in

eight metropolitan and surrounding areas and likely would result in millions of American

consumers paying higher prices for sliced bread. The Division filed a proposed consent decree

simultaneously with the complaint, requiring the divestiture of certain well-known Sara Lee and

BBU sliced bread brands in San Diego, Los Angeles, San Francisco and Sacramento, California;

Kansas City, Kansas; Oklahoma City, Oklahoma; Omaha, Nebraska; and Harrisburg/Scranton,

Pennsylvania, as well as the associated manufacturing, distribution, and marketing assets

required to compete effectively in the sale of those brands in those areas. The court entered the

decree on February 15, 2012.

In United States and State of Montana v. Blue Cross and Blue Shield of Montana, Inc.,

Billings Clinic, Bozeman Deaconess Health Services, Inc., Community Medical Center, Inc.,

New West Health Services, Inc., Northern Montana Health Care, Inc., and St. Peter’s

Hospital,23 the Division and the State of Montana challenged the proposed agreement between

Blue Cross and Blue Shield of Montana (“BCBS-Montana”) and five of the six hospital owners

of New West Health Services, a health insurance provider, under which BCBS-Montana would

pay the five hospitals in exchange for their agreeing collectively to stop purchasing health

In six instances, the Division issued a press release: November 10, 2011 - First Niagara Bank N.A.

acquisition of HSBC Bank USA N.A. (banks); February 13, 2012 - Google Inc.’s acquisition of Motorola Mobility

Holdings Inc. patents (mobile telecommunications); February 13, 2012 - Apple’s acquisition of certain Novell Inc.

patents (mobile telecommunications); February 13, 2012 - Apple Inc., Microsoft Corp. and Research in Motion Ltd.

(RIM) acquisitions of certain Nortel Networks Corporation patents (mobile telecommunications); April 30, 2012 National Express Corporation acquisition of Petermann Partners Inc. (school bus contracts); September 4, 2012 - 3M

Company proposed acquisition of Avery Dennison Corp.’s Office and Consumer Products Group (office supplies).

In the other five instances, the Division informed the parties of its concerns, but did not issue a press release:

proposed acquisition of Veritix by Live Nation (custom computer programming services); Revere Copper Products,

Inc. acquisition of Hussey Copper Ltd. (copper); Old Castle Materials, Inc. acquisition of Stavola Holding

Corporation (aggregate quarries and mining and asphalt paving mixture manufacturing); Crowley Maritime

Corporation proposed acquisition of Trailer Bridge, Incorporated (coastal freight transportation); and Reddy Ice

Holdings proposed acquisition of Arctic Glacier Inc. (packaged ice).

United States v. Grupo Bimbo, S.A.B. de C.V., BBU, Inc. and Sara Lee Corporation, No. 1: 11-CV01857 (D.D.C. filed October 21, 2011).

United States and State of Montana v. Blue Cross and Blue Shield of Montana, Inc., Billings Clinic,

Bozeman Deaconess Health Services, Inc., Community Medical Center, Inc., New West Health Services, Inc.,

Northern Montana Health Care, Inc., and St. Peter’s Hospital, No. 1:11-CV-00123 (D. Mont. filed November 8,

2011).

insurance for their own employees from New West and instead buy insurance for their

employees from BCBS-Montana exclusively for six years. The complaint alleged that the

agreement, as originally structured, would have effectively eliminated New West as a competitor

to BCBS-Montana in the sale of commercial health insurance in several areas of Montana,

thereby decreasing the number of significant competitors in the affected markets from three to

two and allowing BCBS-Montana to increase prices and reduce the quality of service of its

commercial health plans. The proposed settlement, filed simultaneously with the complaint,

prevents the agreement from harming competition by, among other things, requiring New West

to divest its remaining commercial health insurance business to a Division-approved acquirer

with the intent and capability to be an effective competitor in the commercial health insurance

markets in Montana. The court entered the decree on March 15, 2012.

In United States v. Exelon Corporation and Constellation Energy Group, Inc.,24 the

Division challenged the proposed $7.9 billion merger of Exelon Corporation and Constellation

Energy Group Inc. The complaint alleged that the transaction, as originally proposed, likely

would have substantially lessened competition for wholesale electricity, ultimately increasing

electricity prices for millions of consumers in the mid-Atlantic region of the country. Under the

terms of the proposed consent decree filed simultaneously with the complaint and entered by the

court on May 22, 2012, the merged firm is required to divest three electricity generating plants in

Maryland, which in total provide more than 2,600 megawatts of generating capacity.

In United States v. Deutsche Börse AG and NYSE Euronext,25 the Division challenged

the proposed $9 billion merger of the German company Deutsche Börse and NYSE Euronext,

one of the two largest and most prestigious stock exchange operators in the United States. The

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

competition for displayed equities trading services, listing services for exchange-traded products,

including exchange-traded funds, and real-time proprietary equity data products in the United

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

on December 22, 2011, Deutsche Börse’s subsidiary, International Securities Exchange

Holdings, Inc., was required to divest its 31.5 percent interest in Direct Edge, the fourth largest

stock exchange operator in the United States, and agree to other restrictions. On February 9,

2012, the parties abandoned the transaction, and the Division filed a notice with the U.S. District

Court for the District of Columbia withdrawing the complaint and proposed settlement. The

Division and the European Commission communicated extensively throughout the course of

their respective investigations, with frequent contact between investigative staffs, aided by

waivers provided by the merging parties.

In United States v. International Paper Company and Temple-Inland Inc.,26 the

Division challenged the proposed $4.3 billion merger of International Paper Company and

United States v. Exelon Corporation and Constellation Energy Group, Inc., No. 1:11-CV-02276 (D.D.C.

filed December 21, 2011).

United States v. Deutsche Börse AG and NYSE Euronext, No. 1:11-CV-02280 (D.D.C. filed December

22, 2011).

United States v. International Paper Company and Temple-Inland Inc., No. 1:12-CV-00227 (D.D.C. filed

February 10, 2012).

Temple-Inland Inc. The complaint alleged that the transaction, as originally proposed, would

have substantially lessened competition in the production and sale of containerboard, the type of

paper used to make corrugated boxes, in the United States. Corrugated boxes made from

containerboard are used to ship more than 90 percent of all goods nationwide. The Division filed

a proposed consent decree simultaneously with the complaint. The proposed consent decree

requires the parties to divest a total of three containerboard mills, one located in Waverly,

Tennessee, one located in Ontario, California, and either the mill located in Henderson,

Kentucky, or the mill located in Oxnard, California. The decree was entered by the court on

May 3, 2012.

In United States v. Humana Inc. and Arcadian Management Services, Inc.,27 the

Division challenged the proposed acquisition of Arcadian Management Services, Inc. by

Humana Inc. The complaint alleged that the transaction, as originally proposed, would likely

result in higher prices, fewer choices and lower quality Medicare Advantage plans purchased by

Medicare beneficiaries in Arizona, Arkansas, Louisiana, Oklahoma, and Texas. Individuals

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

Medicare Advantage plan instead of traditional Medicare. Congress established the Medicare

Advantage program with the intent that vigorous competition among private Medicare

Advantage insurers would lead insurers to offer seniors a rich set of affordable benefits, provide

a wide range of health insurance choices and be responsive to the demands of seniors. A

proposed consent decree filed at the same time as the complaint requires Humana to divest

Medicare Advantage plans in 51 counties and parishes in these five states. On October 22, 2012,

the decree was entered by the court.

In United States v. United Technologies Corporation and Goodrich Corporation,28 the

Division challenged the proposed acquisition of Goodrich by United Technologies Corporation

(“UTC”). The $18.4 billion transaction is the largest in the history of the aircraft industry. The

complaint alleged that the acquisition, as originally proposed, would lessen competition

substantially in the worldwide markets for the development, manufacture and sale of large main

engine generators, aircraft turbine engines, and engine control systems for large aircraft turbine

engines. Aircraft main engine generators, which are used to produce the electrical power in

communication and navigation equipment, environmental control systems, interior and exterior

lighting, and other aircraft systems, are complex mechanical devices that are difficult to produce,

and for which no substitutes exist. The proposed acquisition would have combined the only two

significant suppliers of large main engine generators for aircraft in the world. Goodrich’s engine

control systems business supplied critical components to several of UTC’s leading competitors

for aircraft turbine engines. In addition, as part of the proposed acquisition, UTC, one of the

three leading suppliers of engine control systems for large aircraft turbine engines, would acquire

Goodrich’s 50 percent share in a joint venture that forms one of the other two producers of such

engine control systems. The proposed final judgment, which was filed simultaneously with the

complaint and is pending with the court, requires UTC to divest Goodrich’s business that

United States v. Humana Inc. and Arcadian Management Services, Inc., No. 1:12-CV-00464 (D.D.C.

filed March 27, 2012).

United States v. United Technologies Corporation and Goodrich Corporation, No. 1:12-CV-01230

(D.D.C. filed July 26, 2012).

designs, develops, and manufactures large main engine generators and engine control systems.

The proposed final judgment also requires UTC to divest Goodrich’s shares in the joint venture

that manufactures engine control systems. Close cooperation between the Division, European

Commission, and Canadian Competition Bureau achieved a coordinated remedy that will

preserve competition in the United States and internationally.

In United States v. Standard Parking Corporation, KCPC Holdings, Inc. and Central

Parking Corporation,29 the Division challenged the acquisition of Central Parking by Standard

Parking, the two largest parking management service companies in the country. The complaint

alleged that the proposed acquisition, as originally structured, would lessen competition for offstreet parking services in central business districts of several cities throughout the United States.

Under the terms of the proposed consent decree filed along with the complaint, Standard and

Central must divest their interests in certain off-street parking facilities in 29 cities in 21 states,

accounting for at least 107 parking facilities in the relevant areas. Without the divestitures, the

combined firm would have gained a dominant market share of off-street parking facilities in the

affected cities, resulting in higher prices and reduced service to motorists. On January 3, 2013,

the decree was entered by the court.

In fiscal year 2012, the Division investigated one bank merger transaction for which

divestiture was required prior to consummation. On November 10, 2011, the Division entered

into a letter agreement with First Niagara Bank and HSBC Bank USA requiring divestiture of 26

branches with approximately $1.6 billion in deposits in Erie, Niagara, and Orleans Counties,

New York. First Niagara’s acquisition of 195 HSBC branches in New York and Connecticut

was subject to final approval of the Office of the Comptroller of the Currency, and the Division

advised the agency that it would not challenge the transaction, provided that the parties comply

with the agreement to divest the specified branch offices and associated loans and deposits.30

The Federal Trade Commission

During fiscal year 2012, the Commission brought 25 merger enforcement actions,31

including three in which the Commission initiated administrative litigation; 15 in which it

accepted consent orders for public comment, 14 of which resulted in final orders (with one still

pending); and seven in which the transactions were abandoned or restructured as a result of

antitrust concerns raised during the investigation. In two of the matters in which the

Commission initiated administrative litigation, the Commission also sought preliminary

injunctions in federal district court to enjoin the acquisitions while the Commission’s

administrative litigation was pending.

The three matters in which the Commission initiated administrative litigation are

United States v. Standard Parking Corporation, KCPC Holdings, Inc. and Central Parking Corporation,

No. 1:12-cv-01598 (D.D.C. filed September 26, 2012).

DOJ Press Release: November 10, 2011 - First Niagara Bank N.A. acquisition of HSBC Bank USA N.A.

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

Commission took its first public action during fiscal year 2012.

described below.

In OSF Healthcare System/Rockford Health System,32 the Commission challenged OSF

Healthcare System’s proposed acquisition of rival health care provider, Rockford Health. The

Commission charged that the acquisition would have reduced competition for hospital services in

the Rockford, Illinois area, causing significant harm to local businesses and patients and leaving

OSF with only one remaining competitor in the market. The Commission filed a complaint in

federal district court in Illinois, seeking a preliminary injunction to halt the transaction. In

addition, the FTC issued an administrative complaint. On April 5, 2012, the U.S. District Court

for the Northern District of Illinois, Western Division, granted a preliminary injunction to halt

the transaction pending the FTC’s administrative proceeding and any subsequent appeals. OSF

abandoned its acquisition plans after the district court ruling, and the Commission then dismissed

its administrative action.

In Graco/Illinois Tool Works,33 the Commission challenged Graco, Inc.’s proposed $650

million acquisition of ITW Finishing from Illinois Tool Works, Inc., Graco’s largest competitor.

The Commission alleged that the transaction would harm competition in the market for

equipment used to apply paints and other liquid finishes to a variety of manufactured goods, such

as cars, wood cabinets, and major appliances. The Commission issued an administrative

complaint and sought a preliminary injunction in the U.S. District Court for the District of

Columbia to halt the transaction pending resolution of the administrative litigation. In March

2012, the Commission withdrew the matter from litigation to consider a proposed consent

agreement. The Commission resolved the matter through entry of a consent order requiring

Graco to hold separate and divest the worldwide liquid finishing equipment of Illinois Tool

Works, Inc. and ITW Finishing.

In Omnicare/PharMerica,34 the Commission issued an administrative complaint

challenging Omnicare, Inc.’s hostile acquisition of a rival long-term care pharmacy provider,

PharMerica Corporation. The Complaint alleged that the transaction would combine the two

largest U.S. long-term care pharmacies, harming competition and enabling Omnicare to raise the

price of drugs for Medicare Part D consumers and others. The Commission charged that a

merger combining Omnicare and PharMerica would significantly increase Omnicare’s already

substantial bargaining leverage by dramatically increasing the number of skilled nursing

facilities, known as SNFs, that receive long-term care pharmacy services from the company.

Due to its substantial market share, the Commission alleged the combined firm likely would be a

“must have” for Medicare Part D prescription drug plans, which are responsible for providing

subsidized prescription drug benefit coverage for most SNF residents and other Medicare

beneficiaries. In February 2012, Omnicare abandoned its proposed acquisition, and the

Commission dismissed its administrative challenge.

FTC v. OSF Healthcare System and Rockford Health, Dkt. No. 9349 (administrative complaint issued

Nov. 18, 2011).

FTC v. Graco, Inc., Illinois Tool Works, Inc. and ITW Finishing LLC, Dkt. No. 9350 (administrative

complaint issued Dec. 15, 2011).

In the matter of Omincare, Inc., Dkt. No. 9352 (administrative complaint issued Jan. 27, 2012).

As previously stated, in fiscal year 2012, the Commission also accepted consent

agreements and issued proposed orders for public comment in 15 merger matters. The

Commission finalized 14 of them, and one remains pending.

In Teva Pharmaceutical Industries/Cephalon,35 the Commission charged, in a

Complaint accompanying the consent order, that Teva Pharmaceutical Industries, Ltd.’s

proposed $6.8 billion acquisition of Cephalon, Inc. would reduce the number of generic versions

of Actiq, a cancer pain drug, from three to two, and lessen competition in the relevant market.

The Commission also alleged that the acquisition would eliminate potential competition between

Teva and Cephalon and reduce the number of generic competitors in the future for Amrix, a

muscle relaxant. While Cephalon’s version of Amrix was the only generic available, the

Commission alleged that Teva was capable of entering the relevant market with a generic version

of the product. To resolve these concerns, the Commission’s consent order required Teva to sell

its rights and assets related to the two drugs to Par Pharmaceuticals, Inc. The consent order also

required Teva to enter into a supply agreement that would allow Par to sell a generic version of

Cephalon’s wakefulness drug Provigil in 2012 to resolve the Commission’s concerns that the

merger would limit generic suppliers in that market.

In Healthcare Technology Holdings,36 the Commission challenged Healthcare

Technology Holdings, Inc.’s proposed acquisition of SDI Health, LLC., a rival of Healthcare

Technology’s IMS Health, Inc. affiliate. The Commission charged that the acquisition of SDI by

Healthcare Technology would have greatly reduced competition and increased prices in the

promotional and medical audit markets. Promotional audits are market research products used

by drug companies and others to estimate advertising and other promotional activities for

branded drugs. Medical audits are used to estimate the actual medical diagnoses physicians

make and the therapies they prescribe. The Commission alleged that the markets for both

promotional and medical audits are highly concentrated and that the acquisition would eliminate

IMS’s only significant competitor (SDI) in both markets. To resolve these competitive concerns

and restore the competition that would have been lost with the acquisition, the Commission

issued a consent order requiring the sale of SDI’s promotional audit and medical audit businesses

to an FTC-approved buyer.

In Laboratory Corporation of America Holdings/Orchid Cellmark,37 the Commission

required laboratory testing companies Laboratory Corporation of America Holdings (LabCorp)

and rival Orchid Cellmark Inc. to divest a portion of Orchid’s paternity testing business to

another testing company, DNA Diagnostics Center (DDC). The Commission charged that

LabCorp’s $85.4 million acquisition of Orchid as originally proposed would have had an

anticompetitive impact in the market for paternity testing services used by government agencies.

Government agencies contract with laboratory testing companies to provide DNA testing

In the matter of Teva Pharmaceutical Industries, Ltd. and Cephalon, Inc., Dkt. No. C-4335 (proposed

order issued July 3, 2012).

In the matter of Healthcare Technology Holdings, Inc., Dkt. No. C-4340 (proposed order issued Oct. 28,

2011).

In the matter of Laboratory Corporation of America Holdings, and Orchid Cellmark, Inc., Dkt. No. C4341 (proposed order issued Dec. 8, 2011).

services and use those tests to resolve paternity issues. The Commission alleged that because

LabCorp and Orchid are the two most significant providers of these paternity testing services in

the country and have a majority of the market, the acquisition would have reduced competition

for government contracts. The divestiture of Orchid’s paternity testing company to DDC, an

FTC-approved buyer, resolved the agency’s charges that the acquisition was anticompetitive by

restoring a competitor in the market.

In Valeant Pharmaceuticals International (Acquisition of Certain Assets from SanofiAventis),38 the Commission challenged Valeant Pharmaceutical International’s $425 million

acquisition of Dermik Laboratories, Inc., the dermatological unit of Sanofi/Aventis. The

Commission alleged that Valeant’s acquisition of Dermik would have illegally reduced

competition in the U.S. market for two topical skin-care drugs, BenzaClin and topical 5FU, by

eliminating the competition that existed between Valeant and Sanofi (Dermik) for these

products. The first drug, BenzaClin and its generic equivalent, is used to treat common acne.

The acquisition would have eliminated competition between Dermik’s branded BenzaClin and

its closest competitor, Valeant’s generic equivalent of BenzaClin. The second drug, 5FU, is a

topical cream used to treat pre-cancerous skin lesions. The Commission charged that the

acquisition would give Valeant control over three topical 5FU products (Valeant’s branded

Efudex, Dermik’s branded Carac, and Valeant’s authorized generic version of Efudex) resulting

in higher prices for consumers. In the first market (the acne drug), the Commission required

divestiture to Mylan Pharmaceuticals, Inc. of the manufacturing and marketing rights of

Valeant’s generic version of BenzaClin. In the second market (the 5FU drug), the consent order

required Valeant to license to Mylan the rights to manufacture and market the authorized generic

version of Efudex. The requirements in the consent order resolved the agency’s concerns that

the acquisition was anticompetitive by restoring the competition that would have been lost if the

acquisitions had proceeded as originally proposed.

In Valeant Pharmaceuticals International (Acquisition of Ortho Dermatologics

Division from Johnson & Johnson),39 the Commission challenged Valeant’s $345 million

acquisition of the Ortho Dermatologics Division from Johnson & Johnson’s Janssen

Pharmaceuticals, Inc. Prior to the proposed acquisition, Valeant, under contract with Spear

Pharmaceuticals, sold a branded tretinoin emollient cream called Refissa, which is used to treat

fine line wrinkles, as well as a generic version of the drug. Ortho sold the only competing

product, branded as Renova. The Commission charged that Valeant’s acquisition of Ortho

Dermatologics would reduce competition in the supply of this product from two to one, thus

creating a monopoly market for tretinoin emollient cream and likely raising prices for

consumers. The Commission’s consent order required Valeant to return all marketing rights for

Refissa and the generic tretinoin emollient cream to Spear Pharmaceuticals. The consent order

thus resolved the agency’s concerns that the acquisition as originally structured would have been

anticompetitive.

In the Matter of Valeant Pharmaceuticals International, Inc. (Acquisition of Certain Assets from SanofiAventis), Dkt. No. C-4342 (proposed order issued Dec. 12, 2011).

In the matter of Valeant Pharmaceuticals International, Inc. (Acquisition of Ortho Dermatologics

Division from Johnson & Johnson), Dkt. No. C-4343 (proposed order issued Dec. 12, 2011).

In AmeriGas Propane/Energy Transfer Partners,40 the Commission challenged

AmeriGas, L.P.’s $2.9 billion acquisition of Energy Transfer Partners, L.P.’s (ETP) Heritage

Propane business. AmeriGas’s ACE division and Heritage Propane were the nation’s second and

third largest suppliers of propane exchange cylinders, both nationally and regionally. Propane

exchange cylinders are used by consumers to fuel barbeque grills and patio heaters. The

Commission charged that the purchase likely would have reduced competition and raised prices

in the highly concentrated market. The Commission’s consent order restores the lost competition

by preventing AmeriGas from buying the Heritage Propane business. The order also ensures that

Heritage Propane continues to be a viable competitor by requiring ETP to maintain the viability

of the business for two years unless it is sold before then.

In Fresenius Medical Care AG & Co. KGaA,41 the Commission challenged Fresenius

Medical Care AG & Co. KGaA’s $2.1 billion acquisition of Liberty Dialysis Holdings, Inc. The

Commission charged that Fresenius’s acquisition of Liberty would have eliminated head-to-head

competition between the two dialysis providers in 43 regional markets, leading to higher prices

and reduced quality for dialysis consumers. The Commission’s consent order required Fresenius

to sell 60 outpatient dialysis clinics in 43 local markets. Without the consent order, the proposed

acquisition would have created monopolies for outpatient dialysis services in 17 of the 43 local

markets. In 24 other markets, the proposed acquisition would have reduced competition in

dialysis providers from three to two providers, and in the remaining two markets, competition

would have been significantly reduced. The consent order restored competition that would have

been lost through the acquisition by requiring Fresenius to divest 54 clinics to Dialysis Newco,

Inc., one clinic to Alaska Investment Partners LLC, and five clinics to Dallas Renal Group, and

to terminate a management services agreement under which Fresenius had managed a clinic for a

third party.

In Carpenter Technology/Latrobe Specialty Metals,42 the Commission challenged

Carpenter Technology’s $410 million merger to monopoly with specialty metals manufacturer

Latrobe. The Commission alleged that Carpenter and Latrobe were the only companies that

made two highly specialized alloys used in the aerospace industry – MP159 and Aerospace

MP35N. The Commission also charged that the combination of the two companies likely would

be anticompetitive and increase prices for purchasers of the alloys by creating a monopoly in the

market. The Commission’s consent order required Carpenter to divest assets necessary for

manufacturing the two alloys to another metals manufacturer, Eramet S.A., thus restoring

competition in the market.

In Western Digital,43 the Commission challenged Western Digital Corporation’s $4.5

billion acquisition of rival Hitachi Global Storage Technologies. Western Digital and Hitachi

In the matter of AmeriGas Propane, L.P. and Energy Transfer Partners, L.P., Dkt. No. C-4346 (proposed

order issued Jan. 11, 2012).

In the matter of Fresenius Medical Care AG & Co., Dkt. No. C-4348 (proposed order issued Feb. 28,

2012).

In the matter of Carpenter Technology Corporation and Latrobe Specialty Metals, Inc., Dkt. No. C-4349

(proposed order issued Feb. 29, 2012).

In the matter of Western Digital Corporation, Dkt. No. C-4350 (proposed order issued Mar. 5, 2012).

both manufactured desktop hard drives used in personal computers. The Commission charged

that the acquisition would have harmed competition in this market by leaving only two

companies in control of the entire worldwide market, likely resulting in increased prices to

consumers. To resolve its competitive concerns, the Commission entered a consent order

requiring Western Digital Corporation to divest to Toshiba assets used to manufacture and sell

desktop hard disk drives. The Commission’s consent order thus replaced competition that

otherwise would have been lost due to the acquisition. Throughout the course of the

investigation, FTC staff cooperated with antitrust agencies in Australia, Canada, China, the

European Union, Japan, Korea, Mexico, New Zealand, Singapore, and Turkey, often working

closely with the staff of these agencies on the analysis of the proposed transaction and potential

remedies to reach outcomes that benefit consumers in the United States.

In CoStar Group/ Loopnet,44 the Commission challenged CoStar Group’s $860 million

acquisition of Loopnet, charging that the acquisition likely would have been anticompetitive in

the market for commercial real estate information services. CoStar actively tracks and

aggregates commercial real estate listings and property-specific information nationwide, and

provides subscription-based access to its comprehensive database of this information. Loopnet

operates the most heavily trafficked commercial real estate database and holds ownership interest

in a third competitor, Xceligent. The Commission charged that the proposed acquisition would

have reduced competition in the markets for these real estate listing databases and information

services. To resolve these charges, the Commission issued a consent order restoring competition

that would have been lost. The order required CoStar to sell LoopNet’s ownership interest in

Xceligent, thus maintaining an independent third party in the market. The Commission also

ordered CoStar to lift non-compete provisions and allow its customers in long-term contracts to

terminate them early, allowing for competitors such as Xceligent to expand or enter more easily

into the commercial real estate information services market.

In Kinder Morgan,45 the Commission challenged Kinder Morgan, Inc.’s $38 billion

acquisition of El Paso Corporation. The Commission charged that the acquisition was

anticompetitive, and likely would have reduced competition in several natural gas pipeline

transportation and gas processing markets in the Rocky Mountains region. Kinder Morgan owns

more than 38,000 miles of pipelines and 180 terminals in North America for the transportation

and storage of natural gas and other energy products. El Paso also produces, processes, and

transports natural gas, and owns, or has interests in, more than 43,000 miles of natural gas

pipelines and gathering systems. The Commission’s consent order required Kinder Morgan to

sell three natural gas pipelines and two gas-processing plants and associated storage capacity in

the Rocky Mountain region. The divestitures thus settled the Commission’s charges that the

acquisition likely would have been anticompetitive by restoring competition in the pipeline

transportation and natural gas processing markets.

In Johnson & Johnson,46 the Commission challenged Johnson & Johnson’s $21.3 billion

In the matter of CoStar Group, Inc., Lonestar Acquisition Sub, Inc., and LoopNet, Inc., Dkt. No. C-4368

(proposed order issued Apr. 26, 2012).

In the matter of Kinder Morgan, Inc., Dkt. No. C-4355 (proposed order issued May 1, 2012).

In the matter of Johnson & Johnson, Dkt. No. C-4363 (proposed order issued June 15, 2012).

acquisition of rival Synthes, Inc. Johnson & Johnson and Synthes are competing manufacturers

of medical devices. The Commission charged that Johnson & Johnson’s acquisition of Synthes

likely would be anticompetitive and reduce competition for volar distal plating systems, which

are medical devices used for surgically treating serious wrist fractures. Volar distal plating

systems are surgically implanted on the underside of the wrist to achieve proper alignment of the

radius bone following a fracture. The Commission’s consent order required Johnson & Johnson

to sell its volar distal radius plating system, Distal Volar Radius, and the balance of its product

line for treating traumatic injuries to Biomet, Inc. By restoring the competition that otherwise

would have been eliminated, the divestitures resolved the Commission’s concern that the

acquisition would illegally reduce competition for these medical devices.

In Koninklijke Ahold N.V./Safeway,47 the Commission challenged Koninklijke Ahold

N.V.’s acquisition of Genuardi’s supermarket chain from Safeway, Inc. Ahold, the parent

company of Giant Food Stores, LLC, owns or has interest in 2,970 supermarkets and specialty

stores with net 2010 sales of $36.8 billion. Genuardi’s is a chain of supermarkets in the

Philadelphia metropolitan area acquired by Safeway in 2001. The Commission charged that

Ahold’s acquisition of Genuardi’s would reduce the number of supermarket competitors in

Newtown, Pennsylvania’s local grocery market from three to two. The Commission preserved

competition by requiring Ahold to sell a supermarket in Newtown, Pennsylvania, to McCaffrey’s

supermarkets.

In Novartis, AG/Fougera,48 the Commission challenged Novartis AG’s $1.5 billion

acquisition of rival pharmaceutical firm, Fougera Holdings, Inc. The Commission charged that

Novartis’ acquisition likely would have harmed competition in the markets for three skin care

drugs: 1) generic calcipotriene topical solution, used to treat chronic, moderately severe scalp

psoriasis; 2) generic lidocaine-prilocaine cream, used by hospitals as a local anesthetic to prevent

pain resulting from injections and surgery; and 3) generic metronidazole topical gel, used to treat

rosacea, a condition that causes chronically red facial skin. In each of the markets, the

Commission alleged that the proposed acquisition would eliminate one of a limited number of

suppliers and cause significant competitive harm by facilitating price increases – or eliminating

price decreases – after the acquisition was completed. To resolve these charges, the Commission

issued a consent order that required Novartis to end its marketing agreement with Tolmar, Inc.,

which allowed it to sell the three generic skin care drugs and return all of the rights to distribute,

market, and sell these products to Tolmar. The Commission also charged that Novartis’

acquisition would eliminate potential competition in a fourth market, the market for the sale of

diclofenac sodium gel, used to treat actinic keratosis. The only version of this gel available is

Solaraze, the branded drug sold by Fougera. Novartis, through its prior agreement with Tolmar,

was the first to file with the FDA for an approval of a generic form of Solaraze. The consent

order required Novartis to return all rights to develop, distribute, market, and sell the generic

diclofenac sodium gel to Tolmar, thus resolving the Commission’s concerns about the

acquisition’s likely impact on competition.

In the matter of Koninklijke Ahold N.V. and Safeway, Inc., Dkt. No. C-4367 (proposed order issued

June 15, 2012).

In the matter of Novartis, AG, Dkt. No. C-4364 (proposed order issued July 16, 2012).

In Renown Health,49 the Commission challenged Renown Health’s acquisitions of two

local cardiology groups in the Reno, NV area, Sierra Nevada Cardiology Associates (SNCA) and

Reno Heart Physicians (RHP). Renown is the largest provider of acute care hospital services in

northern Nevada. Prior to the acquisitions, virtually all of the cardiologists in the Reno area were

affiliated with either SNCA or RHP; Renown Health did not employ any cardiologists. The FTC

charged that Renown Health’s acquisitions of SNCA’s and RHP’s medical practices created a

highly concentrated market for the provision of adult cardiology services in the Reno area. The

Commission’s consent order required Renown to release its staff cardiologists from “noncompete” contract clauses, allowing up to 10 of them to join competing cardiology practices,

thus restoring competition in the market for adult cardiology services in Reno, NV.

ONGOING REASSESSMENT OF THE EFFECTS OF THE PREMERGER

NOTIFICATION PROGRAM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Because the premerger notification program requires reporting before consummation, this

problem has been significantly reduced.

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

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

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

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

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

substantially lessen competition.

In the matter of Renown Health, Dkt. No. C-4366 (proposed order issued Aug. 6, 2012).

LIST OF APPENDICES

Appendix A -

Summary of Transactions, Fiscal Years 2003 - 2012

Appendix B -

Number of Transactions reported and Filings Received by Month for

Fiscal Years 2003 - 2012

LIST OF EXHIBITS

Exhibit A -

Statistical Tables for Fiscal year 2012, Presenting Data Profiling

Hart-Scott-Rodino Premerger Notification Filings and Enforcement

Interests

APPENDIX A

SUMMARY OF TRANSACTIONS

FISCAL YEARS 2003 - 2012

APPENDIX A

SUMMARY OF TRANSACTIONS BY FISCAL YEAR

2003

2004

2008

2009

2010

Transactions Reported

1,014

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

716

1,166 1,450 1,429

Filings Received1

2,001

2,825 3,287 3,510 4,378 3,455 1,411 2,318 2,882 2,829

968

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

684

1,128 1,414 1,400

1.5%

1.6%

1.5%

1.3%

2.2%

1.8%

1.7%

1.4%

2.1%

1.1%

1.6%

1.0%

1.5%

1.2%

2.3%

2.0%

2.2%

2.1%

700

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

575

953

1,157 1,094

Granted5

606

943

997

1,098 1,402 1,021

396

704

888

902

Not Granted5

298

388

370

179

249

269

192

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

2005

2006

2007

438

364

2011

2012

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. Additionally, the data for FY 2010 and FY 2011 reflect corrections to the previously published DOJ number of investigations in which second requests were issued and

the percentage of transactions in which second requests were issued by DOJ.

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

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

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

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

Act; (3) transactions which were found to be non-reportable; and (4) transactions withdrawn before the waiting period began. In addition, where a party filed more than one

notification in the same year to acquire voting securities of the same corporation, e.g., filing one threshold and later filing for a higher threshold, only a single consolidated

transaction has been counted because as a practical matter the agencies do not issue more than one Second Request in such a case. These statistics also omit from the total number

the transactions reported secondary acquisitions filed pursuant to 801.4 of the Premerger Notification rules. Secondary acquisitions have been deducted in order to be consistent

with the statistics presented in most of the prior annual reports.

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

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

component values due to rounding.

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

APPENDIX B

NUMBER OF TRANSACTIONS REPORTED

AND

FILINGS RECEIVED BY MONTH

FOR

FISCAL YEARS 2003 - 2012

APPENDIX B

TABLE 1. NUMBER OF TRANSACTIONS REPORTED BY MONTH FOR FISCAL YEARS

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

October

139

130

201

158

128

122

November

104

127

160

148

189

191

135

217

169

December

143

126

137

151

172

January

138

142

143

158

104

February

109

124

157

119

March

137

121

150

194

131

116

111

April

127

121

125

156

128

May

125

171

158

250

150

108

142

117

June

117

153

172

202

146

108

117

142

July

123

118

141

219

128

120

130

August

134

170

186

200

126

120

164

133

September

108

159

155

139

119

120

100

120

TOTAL

1,014

1,428

1,675

1,768

2,201

1,726

716

1,166

1,450

1,429

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

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

October

148

185

277

261

401

319

185

146

252

242

November

206

254

324

311

376

380

165

242

422

332

December

150

280

238

260

294

343

177

193

188

January

179

161

259

279

288

316

126

188

203

February

146

207

201

257

317

246

116

157

185

March

144

277

239

309

381

242

232

195

215

April

182

245

242

270

312

272

119

182

190

193

May

168

258

337

300

481

294

114

216

284

231

June

158

241

297

346

403

293

213

231

275

July

170

234

236

255

441

259

121

187

240

269

August

164

270

328

367

396

251

149

238

329

259

September

186

213

309

295

288

240

159

243

201

237

TOTAL

2,001

2,825

3,287

3,510

4,378

3,455

1,411

2,318

2,882

2,829

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

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

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

EXHIBIT A

STATISTICAL TABLES

FOR

FISCAL YEAR 2012

DATA PROFILING HART-SCOTT-RODINO PREMERGER

NOTIFICATION FILINGS AND ENFORCEMENT INTERESTS

TABLE I

FISCAL YEAR 2012 1

ACQUISITIONS BY SIZE OF TRANSACTION (BY SIZE RANGE)

HSR TRANSACTIONS

TRANSACTION RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

SECOND REQUEST INVESTIGATIONS 3

PERCENT OF

TRANSACTION RANGE

GROUP

NUMBER

PERCENT OF

TRANSACTION RANGE

GROUP

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

Below 50M 5

0.3%

0.0%

50M - 100M 5

240

17.1%

8.8%

2.1%

10.8%

0.4%

1.3%

1.7%

100M - 150M 5

298

21.3%

8.1%

3.0%

11.1%

0.7%

0.3%

1.0%

150M - 200M 5

133

9.5%

6.0%

5.3%

11.3%

1.5%

0.8%

2.3%

200M - 300M 5

158

11.3%

8.9%

4.4%

13.3%

1.3%

2.5%

3.8%

300M - 500M 5

203

14.5%

10.3%

5.9%

16.3%

1.0%

1.5%

2.5%

500M - 1000M5

208

14.9%

9.6%

5.3%

14.9%

1.4%

3.4%

4.8%

Over 1000M 5

156

11.1%

17.3%

12.8%

30.1%

5.1%

6.4%

11.5%

ALL TRANSACTIONS

1,400

100.0%

135

9.6%

5.1%

14.7%

1.4%

2.1%

3.5%

TABLE II

FISCAL YEAR 2012 1

ACQUISITIONS BY SIZE OF TRANSACTION (CUMULATIVE)

HSR TRANSACTIONS

TRANSACTION RANGE

($MILLIONS)

NUMBER

PERCENT

CLEARANCE GRANTED TO FTC OR DOJ

NUMBER

SECOND REQUEST INVESTIGATIONS 3

PERCENTAGE OF

TOTAL NUMBER OF

CLEARANCES

NUMBER

PERCENTAGE OF

TOTAL NUMBER OF

SECOND REQUESTS

FTC

DOJ

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

LESS THAN 50M 5

0.3%

0.0%

LESS THAN 100M 5

244

17.4%

10.2%

2.4%

12.6%

2.0%

6.1%

8.2%

LESS THAN 150M 5

542

38.7%

21.8%

6.8%

28.6%

6.1%

8.2%

14.3%

LESS THAN 200M 5

675

48.2%

25.7%

10.2%

35.9%

10.2%

20.4%

LESS THAN 300M 5

833

59.5%

32.5%

13.6%

46.1%

14.3%

18.4%

32.7%

LESS THAN 500M 5

1,036

74.0%

42.7%

19.4%

62.1%

18.4%

24.5%

42.9%

LESS THAN 1000M 5

1,239

88.5%

108

52.4%

24.8%

77.2%

24.5%

38.8%

63.3%

ALL TRANSACTIONS

1,400

135

65.5%

34.5%

100.0%

40.8%

59.2%

100.0%

TABLE III

FISCAL YEAR 2012 1

TRANSACTIONS INVOLVING THE GRANTING OF CLEARANCE BY AGENCY

CLEARANCE GRANTED AS A PERCENTAGE OF:

CLEARANCES

GRANTED TO

AGENCY

TRANSACTION RANGE

($MILLIONS)

TRANSACTIONS IN EACH

TRANSACTION RANGE

GROUP

TOTAL NUMBER

OF CLEARANCES

PER AGENCY

TOTAL NUMBER OF

CLEARANCES

GRANTED

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

FTC

DOJ

FTC

DOJ

TOTAL

Below 50M 5

0.0%

50M - 100M 5

8.8%

2.1%

10.8%

15.6%

7.0%

10.2%

2.4%

12.6%

100M - 150M 5

8.1%

3.0%

11.1%

17.8%

12.7%

11.7%

4.4%

16.0%

150M - 200M 5

6.0%

5.3%

11.3%

5.9%

9.9%

3.9%

3.4%

7.3%

200M - 300M 5

8.9%

4.4%

13.3%

10.4%

9.9%

6.8%

3.4%

10.2%

300M - 500M 5

10.3%

5.9%

16.3%

15.6%

16.9%

10.2%

5.8%

16.0%

500M - 1000M5

9.6%

5.3%

14.9%

14.8%

15.5%

9.7%

5.3%

15.0%

Over 1000M 5

17.3%

12.8%

30.1%

20.0%

28.2%

13.1%

9.7%

22.8%

ALL TRANSACTIONS

135

206

9.6%

5.1%

14.7%

100.0%

65.5%

34.5%

100.0%

TABLE IV

FISCAL YEAR 2012 1

TRANSACTIONS IN WHICH SECOND REQUESTS WERE ISSUED

TRANSACTION RANGE

($MILLIONS)

INVESTIGATIONS IN

WHICH SECOND

REQUEST WERE

ISSUED 3

SECOND REQUESTS ISSUED AS A PERCENTAGE OF:

TOTAL NUMBER OF

TRANSACTIONS

TRANSACTIONS IN

EACH TRANSACTION

RANGE GROUP

TOTAL NUMBER OF

SECOND REQUEST

INVESTIGATIONS

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

Below 50M 5

0.0%

50M - 100M 5

0.1%

0.2%

0.3%

0.4%

1.3%

1.7%

2.0%

6.1%

8.2%

100M - 150M 5

0.1%

0.2%

0.7%

0.3%

1.0%

4.1%

2.0%

6.1%

150M - 200M 5

0.1%

0.2%

1.5%

0.8%

2.3%

4.1%

2.0%

6.1%

200M - 300M 5

0.1%

0.3%

0.4%

1.3%

2.5%

3.8%

4.1%

8.2%

12.2%

300M - 500M 5

0.1%

0.2%

0.4%

1.0%

1.5%

2.5%

4.1%

6.1%

10.2%

500M - 1000M5

0.2%

0.5%

0.7%

1.4%

3.4%

4.8%

6.1%

14.3%

20.4%

Over 1000M 5

0.6%

0.7%

1.3%

5.1%

6.4%

11.5%

16.3%

20.4%

36.7%

ALL TRANSACTIONS

1.4%

2.1%

3.5%

1.4%

2.1%

3.5%

40.8%

59.2%

100.0%

TABLE V

FISCAL YEAR 2012 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)

6.8%

2.1%

1.1%

3.2%

0.0%

$100M (as adjusted)

7.0%

1.0%

0.0%

1.0%

0.0%

$500M (as adjusted)

2.1%

6.9%

0.0%

6.9%

0.0%

ASSETS ONLY

453

32.4%

9.9%

4.6%

14.6%

1.5%

2.9%

4.4%

25%

0.4%

0.0%

50%

719

51.4%

11.8%

6.8%

18.6%

1.8%

2.2%

4.0%

ALL TRANSACTIONS

1,400

100.0%

135

9.6%

5.1%

14.7%

1.4%

2.1%

3.5%

TABLE VI

FISCAL YEAR 2012 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

151

10.8%

0.7%

1.3%

0.0%

0.7%

50M - 100M

1.3%

11.1%

22.2%

0.0%

5.6%

100M - 150M

2.6%

5.6%

2.8%

8.3%

0.0%

2.8%

150M - 200M

2.1%

6.7%

3.3%

10.0%

0.0%

200M - 300M

2.9%

10.0%

5.0%

15.0%

2.5%

0.0%

2.5%

300M - 500M

5.4%

5.3%

3.9%

9.2%

1.3%

0.0%

1.3%

500M - 1000M

133

9.5%

6.8%

3.8%

10.5%

0.8%

1.5%

2.3%

Over 1000M

916

65.4%

111

12.1%

6.1%

18.2%

1.9%

2.6%

4.5%

ALL TRANSACTIONS

1,400

100.0%

135

9.6%

5.1%

14.7%

1.4%

2.1%

3.5%

TABLE VII

FISCAL YEAR 2012 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

124

8.9%

1.6%

0.8%

2.4%

0.8%

0.0%

0.8%

50M - 100M

2.4%

6.1%

3.0%

9.1%

0.0%

100M - 150M

2.5%

5.7%

11.4%

0.0%

2.9%

150M - 200M

1.8%

8.0%

16.0%

4.0%

0.0%

4.0%

200M - 300M

4.5%

3.2%

1.6%

4.8%

0.0%

300M - 500M

6.1%

5.8%

7.0%

12.8%

0.0%

3.5%

500M - 1000M

148

10.6%

7.4%

3.4%

10.8%

2.0%

2.7%

4.7%

Over 1000M

791

56.5%

108

13.7%

6.7%

20.4%

1.9%

2.5%

4.4%

Sales Not Available 7

6.8%

1.1%

0.0%

1.1%

0.0%

1.1%

ALL TRANSACTIONS

1,400

100.0%

135

9.6%

5.1%

14.7%

1.4%

2.1%

3.5%

TABLE VIII

FISCAL YEAR 2012 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

213

15.2%

8.9%

3.3%

12.2%

0.5%

0.9%

50M - 100M

208

14.9%

10.1%

3.8%

13.9%

1.4%

0.5%

1.9%

100M - 150M

136

9.7%

15.4%

5.1%

20.6%

2.2%

1.5%

3.7%

150M - 200M

5.2%

8.2%

5.5%

13.7%

1.4%

2.7%

4.1%

200M - 300M

126

9.0%

7.9%

6.3%

14.3%

1.6%

3.2%

300M - 500M

6.9%

6.2%

4.1%

10.3%

1.0%

4.1%

5.2%

500M - 1000M

108

7.7%

7.4%

14.8%

0.0%

3.7%

Over 1000M

272

19.4%

9.6%

5.9%

15.4%

1.8%

3.3%

5.1%

Assets Not Available 8

167

11.9%

10.8%

5.4%

16.2%

2.4%

4.8%

ALL TRANSACTIONS

1,400

100.0%

135

9.6%

5.1%

14.7%

1.4%

2.1%

3.5%

TABLE IX

FISCAL YEAR 2012 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

227

16.2%

10.1%

3.5%

13.7%

0.0%

0.4%

50M - 100M

225

16.1%

8.9%

4.4%

13.3%

0.9%

0.4%

1.3%

100M - 150M

142

10.1%

9.2%

1.4%

10.6%

2.1%

0.7%

2.8%

150M - 200M

120

8.6%

12.5%

2.5%

15.0%

0.8%

1.7%

200M - 300M

118

8.4%

9.3%

4.2%

13.6%

2.5%

1.7%

4.2%

300M - 500M

119

8.5%

9.2%

8.4%

17.6%

2.5%

4.2%

6.7%

500M - 1000M

130

9.3%

10.0%

6.2%

16.2%

1.5%

3.1%

Over 1000M

248

17.7%

9.3%

6.0%

15.3%

2.0%

2.4%

4.4%

Sales not Available 10

5.1%

8.5%

14.1%

22.5%

1.4%

14.1%

15.5%

ALL TRANSACTIONS

1,400

100.0%

135

9.6%

5.1%

14.7%

1.4%

2.1%

3.5%

TABLE X

FISCAL YEAR 2012 1

INDUSTRY GROUP OF ACQUIRING PERSON

3 DIGIT

NAICS

CODE 11

INDUSTRY DESCRIPTION

% POINTS

PERCENT

CHANGE

NUMBER 4

OF TOTAL

FROM FY

2011 12

CLEARANCE

GRANTED TO FTC

OR DOJ

SECOND REQUEST

INVESTIGATIONS 3

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

000 13

Not Available

100

7.1%

0.6%

112 13

Animal Production

0.1%

-0.1%

211 13

Oil and Gas Extraction

1.4%

-0.1%

212 13

Mining (except Oil and Gas)

0.5%

-0.1%

213 13

Support Activities for Mining

0.9%

-0.3%

221 13

Utilities

2.4%

0.0%

236 13

Construction of Buildings

0.2%

-0.3%

237 13

Heavy and Civil Engineering Construction

0.6%

0.1%

238 13

Specialty Trade Contractors

0.1%

-0.1%

311 13

Food and Kindred Products

2.0%

-0.4%

312 13

Beverage and Tobacco Product Manufacturing

0.7%

0.6%

313 13

Textile Mills

0.1%

5000000.0%

N/A

315 13

Apparel Manufacturing

0.1%

5000000.0%

N/A

316 13

Leather and Allied Product Manufacturing

0.1%

5000000.0%

N/A

321 13

Wood Product Manufacturing

0.1%

-0.1%

322 13

Paper Manufacturing

0.9%

0.2%

323 13

Printing and Related Support Actitivies

0.1%

-0.3%

324 13

Petroleum and Coal Products Manufacturing

0.4%

-0.3%

325 13

Chemical Manufacturing

6.8%

1.3%

326 13

Plastics and Rubber Manfuacturing

1.4%

0.0%

327 13

Nonmetallic Mineral Product Manufacturing

0.5%

0.1%

TABLE X

FISCAL YEAR 2012 1

INDUSTRY GROUP OF ACQUIRING PERSON

3 DIGIT

NAICS

CODE 11

INDUSTRY DESCRIPTION

PERCENT

NUMBER 4

OF TOTAL

CLEARANCE

GRANTED TO FTC

OR DOJ

SECOND REQUEST

INVESTIGATIONS 3

% POINTS

CHANGE

FROM FY

2011 12

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

331 13

Primary Metal Manufacturing

1.4%

0.1%

332 13

Fabricated Metal Product Manufacturing

1.2%

-0.4%

333 13

Machinery Manufacturing

2.2%

0.2%

334 13

Computer and Electronic Product Manufacturing

2.6%

-0.5%

335 13

Electrical Equipment, Applicance, and Component

Manufacturing

Transportation Equipment Manufacturing

0.4%

-0.5%

336 13

2.9%

0.0%

339 13

Miscellaneous Manufacturing

2.3%

0.9%

423 13

Merchant Wholesalers, Durable Goods

4.5%

-3.6%

424 13

Merchant Wholesales, Nondurable Goods

5.2%

-0.3%

425 13

Wholesale Electric Markets and Agent and Brokers

0.1%

0.0%

441 13

Motor Vehicle and Parts Dealers

0.4%

0.1%

442 13

Furniture and Home Furnishing Stores

0.2%

0.1%

443 13

Miscellaneous Repair Services

0.1%

0.0%

444 13

Electronics and Appliance Stores

0.1%

5000000.0%

N/A

445 13

Food and Beverage Stores

0.4%

-0.2%

446 13

Health and Personal Care Stores

0.7%

0.2%

447 13

Gasoline Stations

0.4%

-0.1%

448 13

Clothing and Clothing Accessories Stores

0.1%

-0.2%

451 13

Sporting Goods, Hobby, Book, and Music Stores

0.3%

5000000.0%

N/A

452 13

General Merchandise Stores

0.1%

-0.1%

453 13

Miscellaneous Store Retailers

0.2%

0.1%

TABLE X

FISCAL YEAR 2012 1

INDUSTRY GROUP OF ACQUIRING PERSON

3 DIGIT

NAICS

CODE 11

INDUSTRY DESCRIPTION

PERCENT

NUMBER 4

OF TOTAL

CLEARANCE

GRANTED TO FTC

OR DOJ

SECOND REQUEST

INVESTIGATIONS 3

% POINTS

CHANGE

FROM FY

2011 12

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

454 13

Nonstore Retailers

0.9%

0.1%

481 13

Air Transportation

0.1%

-0.1%

483 13

Water Transportation

0.3%

0.1%

484 13

Truck Transportation

0.1%

486 13

Pipeline Transportation

0.5%

-0.1%

488 13

Support Actitivies for Transportation

0.4%

-0.3%

492 13

Couriers

0.1%

-0.1%

511 13

Publishing Industries (except Internet)

3.6%

0.5%

512 13

Motion Pictures and Sound Recording Industries

0.4%

0.1%

515 13

Broadcasting (except Internet)

0.9%

0.1%

517 13

Telecommunications

2.4%

-0.3%

518 13

Internet Service Providers, Web Search Portals, and Data

Processing Services

Other Information Services

0.7%

-0.8%

1.4%

0.8%

522 13

Credit Intermediation and Related Activities

1.9%

-0.1%

523 13

Securitites, Commodity Contracts, and Other Financial

Investments and Related Activities

Insurance Carriers and Related Actitivities

147

10.5%

2.9%

3.7%

-0.3%

525 13

Funds, Trusts, and Other Financial Vehicles

1.3%

-0.3%

531 13

Real Estate

0.5%

0.1%

532 13

Rental and Leasing Services

0.7%

0.1%

533 13

Lessors of Nonfinancial Intangible Assets (except

Copyrighted Works)

Professional, Scientific, and Technical Services

0.5%

0.1%

6.1%

0.0%

519 13

524 13

541 13

TABLE X

FISCAL YEAR 2012 1

INDUSTRY GROUP OF ACQUIRING PERSON

3 DIGIT

NAICS

CODE 11

INDUSTRY DESCRIPTION

PERCENT

NUMBER 4

OF TOTAL

CLEARANCE

GRANTED TO FTC

OR DOJ

SECOND REQUEST

INVESTIGATIONS 3

% POINTS

CHANGE

FROM FY

2011 12

FTC

DOJ

TOTAL

FTC

DOJ

TOTAL

551 13

Management Companies and Enterprises

0.1%

-0.1%

561 13

Administrative and Support Services

2.4%

0.4%

562 13

Waste Management and Remediation Services

0.5%

0.3%

591 13

All Other Support

0.2%

5000000.0%

N/A

611 13

Educational Services

0.6%

0.3%

621 13

Ambulatory Health Care Services

1.1%

-1.0%

622 13

Hospitals

2.5%

0.4%

623 13

Nursing Care Facilities

0.3%

0.1%

711 13

Performing Arts, Spector Sports, and Related Industries

0.1%

0.0%

713 13

Amusement, Gambling, and Recreation Industries

0.6%

0.4%

721 13

Accommodation

0.3%

5000000.0%

N/A

722 13

Food Services and Drinking Places

1.4%

0.1%

811 13

Repairs and Maintenance

0.1%

-0.2%

812 13

Personal and Laundry Services

0.4%

0.2%

813 13

Religious, Grantmaking, Civic, Professional, and Similar

Organizations

Administration of Human Resource Programs

0.1%

-0.1%

0.1%

5000000.0%

N/A

1,400

100.0%

135

206

923 13

TABLE XI

FISCAL YEAR 2012

INDUSTRY GROUP OF ACQUIRED ENTITIES

3 DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

% POINTS

PERCENT

CHANGE

OF TOTAL

FROM FY

2011 12

CLEARANCE

GRANTED TO FTC

OR DOJ

FTC

DOJ

TOTAL

NUMBER OF

3 DIGIT

SECOND REQUEST 3

INTRAINVESTIGATIONS

INDUSTRY

TRANSACTIONS 14

FTC

DOJ TOTAL

000 13

Not Available

4.7%

2.6%

112 13

Animal Production

0.1%

-0.1%

113 13

Forestry and and Logging

0.1%

-0.1%

211 13

Oil and Gas Extraction

1.8%

0.1%

212 13

Mining (except Oil and Gas)

0.3%

-0.3%

213 13

Support Activities for Mining

1.3%

-0.8%

221 13

Utilities

2.6%

-0.9%

236 13

Construction of Buildings

0.6%

0.5%

237 13

Heavy and Civil Engineering Construction

0.8%

0.2%

238 13

Specialty Trade Contractors

0.4%

-0.1%

311 13

Food and Kindred Products

1.9%

-0.3%

312 13

Beverage and Tobacco Product Manufacturing

0.8%

0.3%

313 13

Textile Mills

0.1%

-0.1%

314 13

Textile Products

0.1%

5000000.0%

N/A

315 13

Apparel Manufacturing

0.1%

5000000.0%

N/A

316 13

Leather and Allied Product Manufacturing

0.1%

5000000.0%

N/A

321 13

Wood Product Manufacturing

0.2%

-0.2%

322 13

Paper Manufacturing

0.9%

0.1%

323 13

Printing and Related Support Actitivies

0.3%

0.1%

324 13

Petroleum and Coal Products Manufacturing

0.9%

0.3%

325 13

Chemical Manufacturing

4.4%

-1.0%

TABLE XI

FISCAL YEAR 2012

INDUSTRY GROUP OF ACQUIRED ENTITIES

3 DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

% POINTS

PERCENT

CHANGE

OF TOTAL

FROM FY

2011 12

CLEARANCE

GRANTED TO FTC

OR DOJ

FTC

DOJ

TOTAL

NUMBER OF

3 DIGIT

SECOND REQUEST 3

INTRAINVESTIGATIONS

INDUSTRY

TRANSACTIONS 14

FTC

DOJ TOTAL

326 13

Plastics and Rubber Manfuacturing

2.0%

0.3%

327 13

Nonmetallic Mineral Product Manufacturing

0.6%

0.1%

331 13

Primary Metal Manufacturing

1.1%

0.2%

332 13

Fabricated Metal Product Manufacturing

1.4%

-0.4%

333 13

Machinery Manufacturing

3.4%

0.6%

334 13

Computer and Electronic Product Manufacturing

4.3%

0.8%

335 13

Electrical Equipment, Applicance, and Component

Manufacturing

Transportation Equipment Manufacturing

0.9%

-0.1%

3.0%

0.4%

337 13

Furniture and Related Product Manufacturing

0.1%

0.0%

339 13

Miscellaneous Manufacturing

1.6%

-0.4%

423 13

Merchant Wholesalers, Durable Goods

5.3%

-1.6%

424 13

Merchant Wholesales, Nondurable Goods

5.4%

0.2%

425 13

Wholesale Electric Markets and Agent and Brokers

0.1%

-0.2%

441 13

Motor Vehicle and Parts Dealers

0.5%

0.1%

442 13

Furniture and Home Furnishing Stores

0.1%

-0.1%

443 13

Miscellaneous Repair Services

0.1%

444 13

Electronics and Appliance Stores

0.1%

5000000.0%

N/A

445 13

Food and Beverage Stores

0.5%

0.4%

446 13

Health and Personal Care Stores

0.6%

0.2%

447 13

Gasoline Stations

0.6%

0.0%

448 13

Clothing and Clothing Accessories Stores

0.6%

0.1%

336 13

TABLE XI

FISCAL YEAR 2012

INDUSTRY GROUP OF ACQUIRED ENTITIES

3 DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

% POINTS

PERCENT

CHANGE

OF TOTAL

FROM FY

2011 12

CLEARANCE

GRANTED TO FTC

OR DOJ

FTC

DOJ

TOTAL

NUMBER OF

3 DIGIT

SECOND REQUEST 3

INTRAINVESTIGATIONS

INDUSTRY

TRANSACTIONS 14

FTC

DOJ TOTAL

451 13

Sporting Goods, Hobby, Book, and Music Stores

0.1%

-0.2%

452 13

General Merchandise Stores

0.9%

0.1%

453 13

Miscellaneous Store Retailers

0.4%

0.1%

454 13

Nonstore Retailers

1.1%

0.0%

482 13

Railroad Transportation

0.2%

0.1%

483 13

Water Transportation

0.1%

-0.1%

484 13

Truck Transportation

0.2%

5000000.0%

N/A

486 13

Pipeline Transportation

1.1%

0.4%

488 13

Support Actitivies for Transportation

0.5%

-0.1%

492 13

Couriers

0.1%

-0.1%

493 13

Warehousing and Storage

0.1%

-0.3%

511 13

Publishing Industries (except Internet)

4.7%

0.5%

512 13

Motion Pictures and Sound Recording Industries

0.5%

0.1%

515 13

Broadcasting (except Internet)

0.9%

0.0%

516 13

Internet Publishing and Broadcasting

0.1%

-0.6%

517 13

Telecommunications

2.0%

0.1%

518 13

Internet Service Providers, Web Search Portals, and Data

Processing Services

Other Information Services

2.4%

0.0%

1.6%

1.2%

522 13

Credit Intermediation and Related Activities

1.6%

-0.1%

523 13

Securitites, Commodity Contracts, and Other Financial

Investments and Related Activities

Insurance Carriers and Related Actitivities

2.4%

-0.6%

3.1%

-0.5%

519 13

524 13

TABLE XI

FISCAL YEAR 2012

INDUSTRY GROUP OF ACQUIRED ENTITIES

3 DIGIT

NAICS

CODE

INDUSTRY DESCRIPTION

NUMBER

% POINTS

PERCENT

CHANGE

OF TOTAL

FROM FY

2011 12

CLEARANCE

GRANTED TO FTC

OR DOJ

FTC

DOJ

TOTAL

NUMBER OF

3 DIGIT

SECOND REQUEST 3

INTRAINVESTIGATIONS

INDUSTRY

TRANSACTIONS 14

FTC

DOJ TOTAL

525 13

Funds, Trusts, and Other Financial Vehicles

0.1%

0.0%

531 13

Real Estate

0.4%

0.0%

532 13

Rental and Leasing Services

0.6%

0.1%

533 13

Lessors of Nonfinancial Intangible Assets (except Copyrighted

Works)

Professional, Scientific, and Technical Services

1.0%

-0.7%

111

7.9%

-1.1%

541 13

561 13

Administrative and Support Services

2.5%

0.3%

562 13

Waste Management and Remediation Services

0.6%

0.3%

611 13

Educational Services

0.3%

-0.1%

621 13

Ambulatory Health Care Services

1.6%

-1.6%

622 13

Hospitals

2.1%

0.1%

623 13

Nursing Care Facilities

0.4%

0.2%

711 13

Performing Arts, Spector Sports, and Related Industries

0.6%

0.1%

713 13

Amusement, Gambling, and Recreation Industries

0.6%

0.4%

721 13

Accommodation

0.4%

-0.4%

722 13

Food Services and Drinking Places

1.4%

0.3%

811 13

Repairs and Maintenance

0.5%

-0.1%

812 13

Personal and Laundry Services

0.4%

0.2%

923 13

Administration of Human Resource Programs

0.1%

5000000.0%

N/A

1,400

100.0%

135

206

452

1 Fiscal year 2012 figures include transactions reported between October 1, 2011 and September 30, 2012.

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 2 (d)(iii), 2 (d)(vii), and 2(d)(ix) of the Notification and Report Form.

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

4 During fiscal year 2012, 1429 transactions were reported under the HSR Premerger Notification program. The smaller number, 1400, 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 2012

reflects corrective filings.

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

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

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

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

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

Form.

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

year to filing the Notification and Report Form.

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

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

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

12 This represents the deviation from the fiscal year 2011 percentage.

13 This category includes transactions by newly-formed entities.

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

code.

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