# Federal Trade Commission (2005) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Aftc%3Ab368bbe2b1129cc9 ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text Federal Trade Commission Bureau of Competition Susan A. Creighton, Director Antitrust Enforcement Activities Fiscal Year 2001 March 15, 2 0 0 5 - ABA Antitrust Section Spring Meeting 2005 II cub1 U1 I IUUb b V I I I I I I I O U I V I . Februav ZOOS Bureau of competition Susan A. Creighton Director I Bernard A. Nigro, Jr. Deputy Director Jeffrey Schmidt Deputy Direclor i Mergers I Michael R. Moiseyev, Assistant Director Yolanda M. Gruendel and Matthew I. Reilly Deputy Assistant Directors I I H I I II H I Mergers 11 Michael H. Knight. Assistant Director Rhen ~ r u l l a nd Morris A. Bloom, Deputy Assistant Directors <. Healthcare Services & Products Assistant Director (vacant) David R. Pender and Markus H. Meier, Deputy Assistant Directors Complianee Daniel P. Ducore, Assistant Director Roberta S.Baruch and Elizabeth A. Piolrowski, Deputy Assistant Directors - Premereer Notflication Marian R. Bruno, Assistant Director Roben L. Jones, Deputy Assistant Director Deputy Assistant Director I I Barbara Anthony, Thomas I. Klok Assistants to the Director 1-- 4 I I NWRO Charles A. Mnnuood. Regional Director Jeffrey A. Klurfeld. Merger Guidelines Commentary Task Force I m I H I Mergers N ChuI Pak, Assistant Director Catharine M. Moscatelli, Deputy Assistant Director t Antle~mpetitivePrsctices GeofFrey D. Oliver, Assistant Director Pahick I. Roach, Dmuhi Assistant Director Policy and Coordination Alden F. Abbott, Associate Director Ernest A. Nagata, Deputy Associate Director Merger Process Task Force - Marian R. BOperations m o , Assistant Director - Honors Paralegal Program Mack D. Foster, Deputy Assistant Director I I Philo Liedquist-Scott, Coordinator International Antitrust Randolph W. Tritell, Assistant Director t ABA ANTITRUST SECTION SPRING MEETING Summary of Bureau of Competition Activity Fiscal Year 2001 Through March 15. 2005 Table of Contents I. Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 A Consentorders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Agrium. Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Airgas. Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Albertson's. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 American Air Liquide. Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 AmericaOnline. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 AmgenInc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Baxter International. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 BayerAG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 TheBoeingCompany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Buckeye Partners, L.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Cemex,S.A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Cephalon,Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Chevron Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Cytec Industries, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Dainippon Ink and Chemicals, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Delhaize Freres et cie "Le Lion" S.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Deutsche Gelatine-Fabriken Stoess AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Diageoplc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Dow Chemical Company, The . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 DSMN.V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 El Paso Energy Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 El Paso Energy Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Enterprise Products Partners L.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Exxon Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 GenCorpInc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 General Electric Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 General Electric Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Genzyme Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 INA-HoldingSchaefflerKG ......................................... 6 1tron.Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Koch Industries. Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Koninklijke Ahold NV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Lafarge Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 . . B C. D. . E ManheimAuctions. Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 MCN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 MetsoOyj . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Magellan Midstream Partners, L.P. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 MSC . Software Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Nestle Holdings. Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 NovartisAG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 PfizerInc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Philip Moms Companies, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Phillips Petroleum Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Quest Diagnostics, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 RHIAG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Sanofi-Synthklabo . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ShellOilCompany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SiemensAG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 SrnithKline Beecham plc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 So1vayS.A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Southern Union Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Tyco International. Ltd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Valero Energy Corporation ......................................... 10 Valspar Corporation ............................................... 10 Wal-Mart Stores, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Authorizations to Seek Preliminary Injunctions ...................... 10 Archcoal, Inc.................................................... 10 Cytyc Corporation ................................................ 11 Deutsche Gelatine-Fabriken Stoess AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Diageoplc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 The Hearst Trust and The Hearst Corporation ........................... 11 Kroger CompanylRaley's Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Libbey.Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Meade Instruments Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Nest16 Holdings, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Vlasic Pickle Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Commission OpinionsAnitial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Chicago Bridge & Iron Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 . . ................................................. 13 Court Decs~ons Archcoal, Inc.................................................... 13 H.J. Heinz Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 SwedishMatchAB ............................................... 13 Order Violations ................................................. 14 Boston Scientific Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 RHIAG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 1 F. G . . H . 11 Other Commission Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 H.J.HeinzCompany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Swedish Match AB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Administrative Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Archcoal. Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 AspenTechnology.1nc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Chicago Bridge & lron Company N.V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Evanston Northwestern Healthcare Corporation . . . . . . . . . . . . . . . . . . . . . . . . . 15 H.J. Heinz Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Libbey,Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 MSC . Software Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Swedish Match AG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Best Practices Analysis for Merger Review Process . . . . . . . . . . . . . . . . . . . . . . 16 Conference on the Price Effects of Mergers and Concentration in the United States Petroleum Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Guidelines for Merger Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Horizontal Merger Investigation Data, Fiscal Years 1996 - 2003 . . . . . . . . . . . . 17 Merger Efficiency Roundtable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Merger Enforcement Workshop . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Merger Remedies - Second Workshop . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Hart-Scott-RodinoAntitrust Improvements Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 A CourtDec~s~ons The Hearst Trust and The Hearst Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 19 William H . Gates. III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B ConsentOrders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 C Complaints (Complaints filed as part of a consent agreement not listed separately) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 D. Complaints .Authorized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Archcoal. Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Blockbuster.Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 E Rules and Formal Interpretations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 F Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 . . . . . . 111 Non-Merger Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A Commission Opinionsnnitial Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . Kentucky Household Goods Caniers Association. Inc. . . . . . . . . . . . . . . . . . . North Texas Specialty Physicians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Polygmm Holding. Inc. (The Three Tenors) . . . . . . . . . . . . . . . . . . . . . . . . . . Schering-Plough Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . South Carolina State Board of Dentistry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Summit Technology and VISX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " B . C. D . .. Toys R Us . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CourtDec~s~ons Schering-Plough Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Authorizations to Seek PreliminaryRermanent Injunctions . . . . . . . . . . . . . . 24 A l p h m a , Inc. and Pcmgo Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Mylan Laboratories. Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Consent Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Alaska Healthcare Network . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 American Home Products Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 American Institute for Conservation of Historic and Artistic Works ......... 25 Anesthesia Service Medical Group, lnc . and Grossmont Anesthesia Services MedicalGroup . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Aurora Associated Primary Care Physicians, L.L.C. . . . . . . . . . . . . . . . . . . . . . . 26 Biovail Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Biovail Corporation and Elan Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Bristol-Myers Squibb Company ..................................... 26 Carlsbad Physician Association . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Clark County, Washington Attorneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Evanston Northwestern Healthcare Corporation ........................ 27 FMCCorporation ................................................. 27 Hoechst Marion Roussel ........................................... 28 Indiana Household Movers and Warehousemen, Inc...................... 28 Institute of Store Planners .......................................... 28 Iowa Movers and Warehousemen's Association .......... :.............. 28 MaineHealthAlliance ............................................. 28 Memorial Hermann Health Network Providers .......................... 28 Minnesota Transport Services Association ............................. 28 National Academy of Arbitrators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 New Hampshire Motor Transport Association .......................... 29 Obstetrics & Gynecology Medical Corporation of Napa Valley . . . . . . . . . . . . . 29 Physician Network Consulting, L.L.C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Preferred Health Services, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Professional Integrated Services of Denver, Inc., fichael J . Guese, M.D., and Marcia A . Brauchler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Professionals in Women's Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Southeastern New Mexico Physicians P A . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 South Georgia Health Partners, L.L.C. ................................30 SPA Health Organization dba Southwest Physician Associates ............. 30 Surgical Specialists of Yakima ...................................... 30 System Health Providers ........................................... 31 Tenet Healthcare Corporation ....................................... 31 Virginia Board of Funeral Directors and Embalmers ..................... 31 Warner Communications Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 E. Washington University Physician Network . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 White Sands Health Care System. L.L.C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Administrative Complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Alabama Trucking Association. Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 California Pacific Medical Group dba Brown and Toland Medical Group . . . . . 32 GeraldWear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 JoelR.Yoseph . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Kentucky Household Goods Carriers Association. Inc . . . . . . . . . . . . . . . . . . . . . 32 Movers Conference of Mississippi. Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 North Texas Specialty Physicians . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Piedmont Health Alliance, Inc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Polygram Holding, Inc. (The Three Tenors) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Rambus.Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 RobertLewis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Schering - Plough Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 South Carolina State Board of Dentistry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Union Oil Company of California . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Public Documents/Policy StatementsIConferences . . . . . . . . . . . . . . . . . . . . . . . 35 Second Public Conference on the U.S. Oil and Gasoline Industry . . . . . 35 Commission StudiesIGuidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 AdvisoryOpinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 AdvocacyFilings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Workshops/Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Intellectual Property and Patent Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 0 F. . V . Competitionspeeches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 IV International Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 ABA ANTITRUST SECTION SPRING MEETING Summary of Bureau of Competition Activity Fiscal Year 2001 Through March 15,2005 I. Mergers A. Consent Orders Agrium, Inc. (Final Order November 13,2000): A consent order requires Agrium to divest a deepwater terminal near Portland, Oregon, an up water terminal in central Washington and other assets settling charges concerning its proposed acquisition of the nitrogen fertilizer business of Union Oil Company of California. Agrium and Unocal are the leading producers in the Northwest of nitrogen fertilizer - anhydrous ammonia, urea and UAN 32% solution -ingredients used for plant growth. Airgas, Znc. (Final Order December 18,2001): Airgas, Inc., the nation's largest distributor of industrial, medical, and specialty gases, settled antitrust charges that its January 2000 acquisition of Mallinckrodt, Inc.'s Puritan Bennett Medical Gas Business eliminated competition in the North American market for the production and sale of nitrous oxide. Under terms of the order, Airgas is required to divest two nitrous oxide plants and related assets to Air Liquide America Corporation within 10 days after the Commission issues its final order. Nitrous oxide is a clear, odorless gas used mainly in dental and surgical procedures as an analgesic agent or as a supplement to anesthesia. Albertson's, Znc. (Final Order December 8,2000): Albertson's Inc. agreed to divest 104 supermarkets and American Stores Company agreed to divest 40 supermarkets to settle charges that Albertson's acquisition of American Stores raised antitrust concerns in 57 markets in California, Nevada and New Mexico. The divestiture agreement is the largest retail divestiture of supermarkets ever required by the Commission. The final order, modified after the public comment period, does not require the divestiture of a Lucky (American Stores Company) store in Lompoc, California to Ralph's. American Air Liquide, Znc. (Final Order June 29,2004): L'Air Liquide was permitted to acquire Messer Griesheim GmbH, a leading industrial gas producer. Under terms of the order, Air Liquide is required to divest six air separation units operated by Messer in California, Texas, Louisiana, and Mississippi within six months. According to the complaint, the transaction as proposed would substantially lessen competition in the market for liquid argon, liquid oxygen and liquid nitrogen. AmericaOnline, Znc. (Final Order April 17,2001): AOL and Time Warner Inc. settted Commission concerns relating to their proposed merger. The order requires AOL Time Warner to open its cable system to competitor intemet service providers. In addition, the company is prohibited from interfering with content passed along the bandwidth contracted for by nonaffiliated intemet service providers; and prohibited from interfering with the ability of nonaffiliated providers of interactive television services to interact with interactive signals that AOL Time Warner agreed to carry. Amgen Znc. (Final Order September 3,2002): Amgen settled antitrust charges that its proposed $16 billion acquisition of Immunex Corporation would reduce competition and tend to create a monopoly in the biopharmaceutical markets for neutrophil (white blood cell) regeneration factors; tumor necrosis factor (TNF) inhibitors; and interleukin-1 (IL-1) inhibitors. The consent order requires the firms to sell all of Immunex's assets related to Leukine - a neutrophil regeneration factor - to Schering AG; license certain intellectual property rights to TNF inhibitors to Serono S.A.; and license certain intellectual property rights related to IL-1 inhibitors to Regeneron Pharmaceuticals Inc. Barter Znternational, Znc. (Final Order February 3,2003): Baxter settled Commission concerns stemming from its $316 million proposed acquisition of Wyeth Corporation's generic injectable drug business and agreed to divest several pharmaceutical products. The Commission charged that the acquisition would reduce competition in the manufacture and sale of propofol (a general anesthetic); new injectable iron replacemint therapies; metocloprarnide (used to treat nausea); and vecuronium and pancuronium (neuromuscular blocking agents used to temporarily freeze muscles during surgery). The consent order requires divestitures in each of the pharmaceutical markets. Bayer AG (Final Order August 2,2002): A consent order permits Bayer to purchase Aventis CropScience Holdings S.A. from Aventis S.A. The order requires Bayer to divest businesses and assets in the following chemical insecticide products: new .four major markets: new generation generation chemical insecticide active ingredients; post-emergent grass herbicides for spring wheat; and cool weather cotton defoliants. According to the complaint, the transaction as proposed would result in the elimination of both actual and competition in the four markets; increase barriers to entry; reduce innovation competition for certain products; and increase the possibility of coordinated interaction between competitors. The Boeing Company (Final Order January 5,2001): The consent order permits the acquisition of Hughes Space and Communications,a subsidiary of General Motors Corporation, but prohibits Boeing from providing systems engineering and technical assistance (SETA) to the U.S. Department of Defense for a specific classified program. According to the complaint, Boeing is the sole supplier of SETA programs and Hughes is one of two competing contractors. Buckeye Partners, L.P. (Final Order December 17,2004): Buckeye agreed to notify the Commission before acquiring any interest in the Niles petroleum terminal for a period of ten years under provisions of a consent order. The consent order settled charges that Buckeye's proposed acquisition of five refined petroleum products pipelines and 24 petroleum products terminals in the United States from Shell Oil Company would reduce competition in the market for the terminaling of gasoline, diesel fuel, and other light petroleum products in the area of Niles, Michigan. Cemex, S.A. (Proposed Consent Agreement Accepted for Public Comment February 11,2005): Cemex S.A. agreed to settle concerns stemming from its proposed $5.8 billion acquisition of RMC Group PLC. Under terms of the proposed consent order, Cemex will divest RMC's five ready-mix concrete plants in the Tucson, Arizona area, at no minimum price to a Commissionapproved buyer. Cephalon, Inc. (Final Order September 20,2004): The consent order settled charges that Cephalon's proposed acquisition of Cima Labs, Znc. would allow Cephalon to continue its monopoly in the United States market for drugs that eliminate or reduce the spikes of severe pain that chronic cancer patients experience. The consent order required Cephalon to grant Barr Laboratories, Inc. a fully paid, irrevocable license to make and sell a generic version of Cephalon's breakthrough cancer pain drug, Actiq, in the United States. Chevron Corporation (Final Order January 4,2002): A consent order permitted the $45 billion merger of Chevron and Texaco Inc., but required significant divestitures in the petroleum industry, including gasoline marketing assets, refining and bulk supply facilities, crude oil pipeline interests and terminaling facilities. Cytec Industries, Inc. (Proposed Consent Agreement Accepted for Public Comment Febmary 25,2005): A proposed consent order requires Cytec Industries, Inc. to divest UCB's Amino Resins Business in Massachusetts and Germany to a Commission-approved buyer. According to the complaint issued with the agreement, the acquisition as proposed would eliminate direct competition between the two finns in the market for amino resins used for industrial liquid coatings and ~ b b e adhesion r promotion. Dainippon ink and Chemicals, Inc. (Final Order March 13,2003): Dainippon agreed to divest the perylene business of its U.S. subsidiary, Sun Chemical Corporation, to Ciba Specialty Chemicals Inc. and Ciba Specialty Chemicals Corporation to settle allegations that its proposed acquisition of Bayer Corporation's high-performance pigment manufacturing facility would eliminate competition in the highly concentrated world market for perylenes - organic pigments used to impart unique shades of red color to products, including coatings, plastics and fibers. Delhaize Freres et cie "Le Li0n"S.A. (Final Order May 30,2001): The consent order permitted the merger of Establissements Delhaize Freres et Cie "Le Lion" S.A. and Delhaize America, Inc. with l$annaford Bros. Co. and required the sale of 37 Hannaford supermarkets and one Hannaford site to three different buyers. Deutsche Gelatine-Fabriken Stoess AG (Final Order April 17,2002): A consent order allowed DGF to complete its $170 million acquisition of Leiner Davis Gelatin Corporation and its Goodman Fielder USA, Inc. subsidiary under terms that the entire pigskin and beef hide gelatin business of Goodman Fielder would be excluded from the transaction. The complaint issued with the order alleged that if the firms were allowed to consummate the transaction, as originally proposed, they would account for more than 50 percent of the U.S. market for these gelatin products used by the food industry as an ingredient in edible products and by the pharmaceutical industry to produce capsules and tablets. The consent order requiring the restructured transaction was negotiated after the Commission authorized staff to seek a preliminary injunction in federal district court to block the parties from consummating the transaction. Diageoplc (Final Order December 19, 2001): Diageo and Vivendi Universal S.A. resolved antitrust concerns regarding Diageo's and Pemod Ricard S.A.'s joint acquisition of Vivendi's Seagram Spirits and Wine Business that would combine the second- and third- largest rum producers in the United States. The consent order, among other things, required Diageo to divest the Malibu rum business worldwide to a Commission-approved buyer within six months of the acquisition of Seagram. On October 23,2001, the Commission authorized staff to seek a preliminary injunction in federal district court to block the transaction. DOWChemical Company, The (Final Order March 15,2001): Dow settled antitrust concerns relating to its proposed merger with Union Carbide Corporation. Dow agreed to divest and license intellectual property necessary to the production of linear low-density polyethylene - an ingredient used in premium plastic products such as trash bags and sealable food pouches - to BP Amoco plc. DSM N.V. (Final Order January 6,2004): A consent order permitted DSM N.V. to acquire the Vitamins and Fine Chemicals Division of Roche Holding AG but requires DSM to divest its phytase business to BASF AG within 10 days after the transaction is completed. Phytase is an enzyme added to certain animal feed to promote the digestion of nutrients necessary for livestock production. El Paso Energy Corporation (Final Order January 30,2001): A final order allowed El Paso Energy Corporation to acquire PG&E Gas Transmission Teco, Inc. and PG&E Gas Transmission Texas Company (subsidiaries of Pacific Gas & Electric) with the provision that it divest its interest in the Oasis Pipe Line Company; PG&E's share of the Teco Pipeline; and the Matagorda Island Offshore production area. The divestitures ensure that competition is maintained for natural gas transportation in three Texas markets. El Paso Energy Corporation (Final Order March 19,2001): A modified consent order allows the merger of El Paso and Coastnl Corporation and requires the divestiture of more than 2,500 miles of gas pipeline system in Florida, New York and the Midwest. The modifications relate to the establishment of the Devclopment Fund for the Green CanyonKarpon pipeline acquirer and is described in the final order. Enterprise Products Partners L.P. (Final Order November 23,2004): Enterprise Products Partners L.P. settled charges that its $13 billion merger with Gulfrerra Energy/Partners L.P. would eliminate competition in two markets: the pipeline transportation of natural gas from the West Central Deepwater region of the Gulf of Mexico; and propane storage and terminaling services in Hattisburg, Mississippi. The consent order requires the divestiture of an interest in a pipeline transportation system and an interest in a propane facility that serves the Dixie Pipeline. Exxon Corporation (Final Order January 30,2001): A consent order settled antitrust concems stemming from Exxon's proposed acquisition of Mobil Corporation, and required the largest retail divestiture in Commission history. The divestitures, representing only a fraction of the worldwide assets of Exxon and Mobil, include 2,431 gas stations; an Exxon refinery in Califomia; a pipeline; and other assets. According to the complaint, the proposed merger would injure competition in moderately concentrated markets - Califomia gasoline refining; marketing and retail sales of gasoline in the Northeast, Mtd-Atlantic, and in the State of Texas; and in the highly concentrated markets for jet turbine oil. GenCorp Znc. (Final Order December 19,2003): A consent order allowed GenCorp Inc. to acquireAtlantic Research Corporation while requiring the divestiture of Atlantic's in-space liquid propulsion business within six months of consummating the transaction. According to the complaint issued with the consent order, the transaction as originally planned would have lessened competition in the United States in four different types of in-space propulsion engines: monopropellant thrusters; bipropellant apogee thrusters; dual mode apogee thrusters; and biopropellant attitude control thrusters. General Electric Company (Final Order January 28,2004): A final consent order settled antitrust concems stemming from General Electric Company's proposed acquisition of A d a Gevaert N. V.'s nondestructive testing business. According to the complaint issued with the consent order, the transaction as proposed would have eliminated competition in the United States markets for portable flaw detectors, corrosion thickness gages, and precision thickness gages - equipment used to inspect the tolerance of materials withoput damaging them or impairing their future usefulness. The consent order requires General Electric to divest its worldwide Panametrics Ultrasonic NDT business to RID Tech, Inc. within 20 days after the transaction is completed. General Electric Company (Final Order October 25,2004): General Electric was permitted to acquire ZnVision Technologies, Inc. with conditions that it divest Invision's YXLON x-ray nondestructive testing and inspection equipment to a Commission approved acquirer. According to the complaint issued with the consent order, the two firms are direct competitors in a highly concentrated market. The consent order protects competition in the United States market for specialized x-ray testing and inspection including standard x-ray cabinets; x-ray systems equipped with automated defect recognition software; and high-energy x-ray generators. Genzyme Corporation (Final Order January 31,2005): A consent order allowed Genzyme's acquisition of ILEX Oncology, Inc., but requires the companies to divest certain assets in the market for solid organ transplant acute therapy drugs. Specifically, Genzyme is required to divest all contractual rights related to ILEX's Campath@, an immunosuppressant antibody used in solid organ transplants to Schering AG. INA-Holding Schaef9er KG (Final Order February 15,2002): The consent order permits WA's acquisition of FAG Kugelfischer Georg Schufer AG but requires the divestiture of FAG'S cartridge ball screw support bearing business to Aktiebolaget SKF within 20 business days after the consummation of the INAJFAG transaction. According to the complaint issued with the consent order, the acquisition, as planned, would create a monopoly in the market worldwide. Itron, Inc. (Final Order August 5,2004): The consent order, designed to preserve competition in the market for the manufacture and sale of mobile radio frequency automatic meter reading technologies for electric utilities in the United States, permitted Itron's $255 million acquisition of Schlumberger Electricity, Inc. The consent order requires Itron to grant a royalty-free, perpetual, and irrevocable license to Hunt Technologies, Inc., creating an effective competitor in this market that allows utility companies and others to gather electric consumption data automatically and remotely from electricity meters. - Koch Industries, Znc. (Final Order January 31.2001): A consent order settles allegations that Entergy-Koch LP'S (a limited partnership owned equally by Entergy Corporation and Koch) acquisition of 50 percent of the Gulf South Pipeline Companv, LP from Koch would lessen .~ competition for the sale of electricity to consumers in Louisiana and western Mississippi and the distribution of natural gas to consumers in New Orleans and Baton Rouge. Entergy is the regulated electric and natural gas utility in parts of Louisiana and Mississippi. The order requires Entergy to establish a transparent process to buy natural gas and natural gas transportation that will assist state regulators in determining whether Entergy purchased gas supplies at inflated prices from its Entergy-Koch partnership. & Koninklgke Ahold NV (Final Order December 7,2001): Ahold would be permitted to acquire Bruno's Supermarkets, Inc. under terms of a consent order, but would be required to divest two BI-LO supermarkets in Georgia - one Milledgeville, and one in Sandersville. The Commission's complaint charged that the acquisition as originally proposed would reduce competition in the retail sale of food and grocery items in supermarkets in the area and would eliminate direct competition between supermarkets owned and controlled by Ahold and those owned or controlled by Bruno's. 6 h f a r g e Corporation (Final Order August 8,2001): The consent order required the divestiture of Blue Circle Industries PLC's cement business serving the Great Lakes region of Ohio, Michigan, Illinois, Wisconsin and New York; its cement business in the Syracuse, New York; and its lime business in the southeast United States. These d~vestituressettled antitrust concerns stemming from Lafarge's proposed merger with Blue Circle. The two firms are market leaders in the industry for cement and lime. Manheim Auctions, Znc. (Final Order November 13,2000): The consent order settles antitrust concerns stemming from the acquisition of ADTAutomotive Holdings, Inc., the nation's third largest operator of wholesale motor vehicle auctions. The order requires Manheim to divest nine auctions in Kansas City, Missouri; Denver and Colorado Springs, Colorado; Atlanta, Georgia; San Francisco, California; Seattle, Washington; Tampa, Orlando and Daytona Beach, Florida; and Phoenix, Arizona. MCN (Final Order May 15,2001): A final order permitted the $4 billion merger of MCN, a natural gas utility servicing communities in Michigan, and DTE, a public utility engaged in the generation and sale of electricity in Detroit and southeastern Michigan. The consent order, designed to resolve Commission concerns that the merger would lessen competition in the local distribution of electricity and in the local distribution of natural gas in the city of Detroit and in the Michigan counties of Macomb, Monroe, Oakland, Washtenaw and Wayne. MCN is the parent of Michigan Consolidated Gas Company and DTE is the parent holding company of The Detroit Edison Company. Metso Oyj (Final Order October 23,2001): Metso settled charges that if its acquisition of Svedala Idustri AB were allowed to proceed as planned, competition would be lessened in four rock processing equipment markets: primary gyratory crushers; jaw crushers; cone crushers; and grinding mills. The firms agreed to divest Metso's worldwide primary gyratory crusher and grinding mill businesses and Svedala's worldwide jaw crusher and cone crusher businesses. The three crusher businesses would be purchased by Sandvik AB, a Swedish corporation; the grinding mill business would be purchased by Outokumpu of Finland. Metso and Svedala are the two largest suppliers of rock processing equipment in the world. lMagellan Midstream Partners, L.P. (Final Order November 23, 2004): Under terms of a consent order, Magellan completed its acquisition of pipelines and terminals in the Midwestern United States and a refined petroleum products terminal in Oklahoma City that supplies light petroleum products such as gasoline and diesel fuel from the Shell Oil Company. The consent order required Magellan to divest the Shell OMahoma City terminal to a Commission-approved buyer within six months after the transaction is consummated. MSC. Software Corporation (Final Order August 14,2002): MSC settled charges that its 1999 acquisitions of Universal Analytics, Inc. and Computerized Structural Analysis & Research Corp. eliminated competition between the three firms in the development and application of engineering software. The administrative complaint issued October 2000, alleged that the two acquisitions would eliminate competition for advanced versions of Nastran, an engineering simulation software program used throughout the aerospace and automotive industries. The consent order required MSC to divest atleast one clone-copy of its current advance Nastran through royalty-free perpetual, non-exclus~velicenses to one or two acquirers approved by the Commission. - Nestle Holdings, Inc. (Final Order February 8, 2002): Nestle settled antitrust charges that its $10.3 billion proposed acquisition of Ralston Purina Company would substantially lessen competition in the United States market for dry cat food through the elimination of direct competition between the two firms and increase the likelihood that the combined firm could unilaterally exercise market power. The order requires the divestiture of Ralston's Meow Mix and Alley Cat brands to J.W. Childs Equity Partners II,L.P. Novartis AG (Final Order December 19,2000): The consent order permits the merger of Novartis and AstraZeneca PLC into a new Swiss company, Syngenta AG. The order requires Novartis to divest its worldwide foliar fungicide business (based on the strobilurin chemical class) to Bayer Ag; and requires AstraZeneca to divest its worldwide com herbicide business (based on the active ingredient acetochlor) to Dow AgroSciences LLC. Pfzer Znc. (Final Order May 27,2003): A final consent order permits Pfizer Inc.'s acquisition of Phamacia Corporation while requiring the divestiture of various products including extended release drugs used in the treatment of an overactive bladder; hormone replacement therapies; erectile dysfunction; canine arthritis; and motion sickness. Novartis AG, Neurocrine Biosciences, Inc., Schering-Plough Corporation, Johnson & Johnson, Insight Pharmaceuticals Corporation, and Cadbury Schweppes are named in the order as potential buyers of the various pharmaceuticals and products. Philip Morris Companies, Znc. (Final Order February 27, '-001): The consent order permits the merger of Philip Monis and Nabisco Holdings Corporation while settling charges that the merger of the two food companies would reduce competition in the already highly-concentrated food product markets. Under terms of the order, the parties are required to divest Nabisco's drymix gelatin, dry-mix pudding, no-bake dessert, and baking powder assets to The Jet Sea Company and Nabisco's intense mints assets to Hershey Foods Corporation. Phillips Petroleum Company (Final Order February 7,2003): A final consent order allows the merger of Phillips Petroleum and Conoco Inc. but requires certain divestitures and other relief to maintain competition in the gasoline refining market in specific areas of the United States. Among the assets to be divested are refineries, propane terminals, and natural gas gathering facilities. The combined firm will be known as ConocoPhillips. Quest Diagnostics, Inc. (Final Order April 3,2003): Quest Diagnostics settled antitrust concerns that its proposed acquisition of Unilab Corporation would substantially increase concentration in the clinical laboratory testing services market by agreeing to divest clinical laboratory testing assets in Northern California to Laboratory Corporation of America. RHZAG (Final Order March 21, 2001): A consent order permits the acquisition of Global Irzdustrial Technologies, Irzc. and requires the divestiture of two refractories manufacturing facilities -Global's Hammond, Indiana and Marelan, Quebec plants - to Resco Products, Inc. According to the complaint, the proposed acquisition would create the largest producer of refractories in North America with dominant positions in the magnesia - carbon brick refractory market and in the high alumina brick refractory market. Refractories are used to line furnaces in many industries that involve the heating or containment of solids, liquids, or gases at high temperatures. Sanofi-Synthdlabo (Final Order September 20,2004): The consent order settled antitrust concerns that Sanofi's proposed $64 billion acquisition of Aventis would create significant overlaps in several markets for pharmaceutical products while creating the world's third largest pharmaceutical company. Under terms of the consent order, Sanofi must: 1) divest its Arixtra factor Xa inhibitor to GlaxoSmithKline, plc; 2) divest its key clinical studies for the Camptom cytotoxic colorectal cancer treatment to Pfizer, Inc. and 3 ) divest Aventis' contractual rights to the Estorra insomnia drug either to Sepracor, Inc. or to another Commission-approved buyer. Shell Oil Company (Final Order November 18,2002): Shell Oil Company was allowed to complete its $1.8 billion acquisition of Pennzoil-Quaker State Company but required to divest certain assets to maintain healthy competition in the refining and marketing of Group II paraffinic base oil in the United States and Canada. Under terms of the consent order, S k i 1 and Pennzoil must divest its 50 percent interest in Excel Paralubes (a base oil refinery in Westlake, Louisiana) and freeze Pennzoil's right to obtain additional Group II supply under a contract with ExxonMobil at approximately current levels (up to 6,500 barrels of base oil per day). Siemens AG (Final Order May 18,2001): Siemens settled charges relating to its proposed $9 billion acquisition of Atecs Mannesmann AG, a subsidiary of Vodafone. The consent order requires, among other things, the divestiture of Vodafone's Mannesmann Dematic Postal Automation business to Northrop Grurnman Corporation. Siemens and Vodafone, through its Dematic subsidiary, are the two leading suppliers of postal automation systems in the world. SmithKline Beecham plc (Final Order December 26,2001): Under terms of a final consent order settling charges stemming from the merger of SmithKline and Glaxo Wellcomeplc, the parties agreed to divest pharmaceutical products in six markets: antiemetics; the antibiotic, . ceftazidime; oral and intravenous antiviral drugs for the treatment of herpes; topical antiviral drugs for the treatment of genital herpes; and over-the-counter H-2 blocker acid relief products. Solvay S.A. (Final Order June 25,2002): Solvay settled antitrust concerns stemming from its proposed acquisition of Ausimont S.p.A. from Italenergia S.p.A., and agreed to divest its U.S. polyvinylidene fluoride (PVDF) operations and its interest in Alventia LLC, a joint venture which manufactures the main raw material for PVDF. According to the complaint, the proposed acquisition would lessen competition in two markets: the production and sale of all grades of PVDF; and the production and sale of melt-processible grades of PVDF. Southern Union Company (Final Order July 16,2003): Southern Union Company settled antitrust concerns stemming from its proposed acquisition of the Panhandle pipeline from CMS Energy Corporation. The consent order permitted the acquisition but required Southern Union to terminate an agreement to manage the Central pipeline which transports natural gas to several counties in Missouri and Kansas. Tyco International, Ltd. (Final Order December 5,2000): Tyco settled antitrust concerns relating to its acquisition of Mallinckrodt, Inc. Tyco agreed to divest its endotracheal tube business to Hudson RCI. The consent order permitted the acquisition. Valero Energy Corporation (Final Order February 22,2002): The consent order permitted Valero to complete its $6 billion merger with Ultramar Diamond Shamrock Corporation, but required the divestiture of Ultramar's Golden Eagle Refinery, bulk gasoline contracts, and 70 Ultramar retail service stations in Northern California to a Commission-approved acquirer. According to the complaint, the merger as onginally proposed, would have kssened competition in two refining markets in California resulting in consumers paying more than $150 million annually if the price of CARB gasoline increased just one cent per gallon. CARB gasoline meets the specifications of the Califomia Air Resources Board. Valspar Corporation (Final Order January 26,2001): Final order permitted Valspar's acquisition of Lilly Industries, Inc., but requires Valspar to divest its mirror coatings business to Spraylet Corporation. Mirror coatings are applied to the back of a piece of glass in order to produce a mirror. Wal-Marfstores, Inc. (Final Order February 27,2003): A consent order settled Commission concerns that Wal-Mart's proposed acquisition of the largest supermarket chain in Puerto Rico, Supermercados Amigo, Inc., would eliminate competition between supercenters and club stores owned or controlled by Wal-Mart and supermarkets owned or controlled by Arnigo. While the consent order permits the acquisition, it requires Wal-Mart to divest four Amigo supermarkets in Cidra, Ponce, Manati, and Vega Baja, Puerto Rico to Supermercados Maximo. B. Authorizations to Seek Preliminary Injunctions Arch Coal, Znc. (March 30,2004): The Commission authorized staff to file acomplaint to block Arch Coal, Inc.'s proposed acquisition of Triton Coal Company, L.L.C. from New Vulcan Holdings, L.L.C. on grounds that the acquisition would increase concentration and tend to create a monopoly in the market for coal mined from the Southern Powder River Basin and in the production of 8800 British Thermal Unit coal. On April 1,2004, the complaint was filed in the U.S. District Court for the District of Columbia Cytyc Corporation (June 24,2002): The Commission authorized staff to seek a preliminary injunction to block the acquisition of Digene Corporation on grounds that the combination of the two firms would reduce competition and increase consumer prices within the highly concentrated market for primary cervical cancer screening tests, both now and in the future. The parties abandoned the transaction before court papers could be filed. Deutsche Gelatine-Fabriken Stoess AG (January 15,2002): The Commission authorized staff to seek a preliminary injunction to block DGF's proposed acquisition of Leiner Davis Gelatin Corporation and its Goodman Fielder USA, Inc. subsidiary. According to the Commission this transaction, if allowed to proceed as planned, would increase the likelihood of anticompetitive activity in the U.S. market for pigskin and beef hide gelatin, used by the food industry as an ingredient in edible products and by the pharmaceutical industry to produce capsules and tablets. The combination of the two firms would account for more than 50 percent of the relevant market in the U.S. A proposed consent agreement designed to remedy the significant antitrust concerns was accepted for public comment March 7,2002; the consent order was finalized April 17,2002. Diugeoplc (October 23,2001): The Commission authorized staff to file a motion for a preliminaxy injunction to block the proposed acquisition of Vivendi Universal S.A. ' s Seagram Wine and Spirits Business on grounds that the transaction, would not only combine the secondand third-largest rum producers in the U.S. eliminating actual competition between the firms, but could also create higher prices for consumers of rum. A consent order permitted the acquisition, with certain conditions. The Hearst Trust and The Hearst Corporation (April 5,2001): Hearst and its First DataBank subsidiary were charged with illegally acquiring a monopoly over a key type of drug information database used by pharmacists, hospitals, health plans, and other health care professionals through Hearst's 1998 acquisition of it main competitor, Medi-Span. The complaint, filed in the U.S. District Court for the District of Columbia, asked the court to either order Hearst to create a new competitor to replace Medi-Span or forfeit its profits from the anticompetitive price increases that followed the acquisition of its only competitor. The complaint further alleged that the acquisition was consummated as a result of Hearst illegally withholding documents required for the premerger antitrust review under the Har-Scott-Rodino Antitrust Improvements Act of 1976. On December 18,2001, a federal district court entered a proposed Final Order and Stipulation requiring Hearst to pay $19 million as disgorgement of unlawful profits and to divest Medi-Span to Facts and Comparisons. This settlement marks the first time the Commission has sought either divestiture or disgorgement of profits in a federal court action for a consummated merger. A separate complaint to settle allegations that The Hearst Tmst and The Hearst Corporation subsidiary, violated the reporting requirements of the Har-Scott-Rodino Act was filed October 11,2001. In that settlement, Hearst paid $4 million in civil penalties. Kroger Company/Raley 's Corporation (October 2, 2002): The preliminary injunction authorized by the Commission during the investigation into Kroger's acquisition of 18 Raley's supermarkets in the Las Vegas, Nevada area was not filed. After staff determined that the transaction would promote healthy competition in the Las VegasiHenderson area due to the rapid growth of the market and the presence of Wal-Mart, Albertson's, Kroger and Safeway - the four major competitors in the area, the investigation was closed. Libbey, Inc. (December 18, 2001): The Commission authorized staff to seek a preliminary injunction to block Libbey's proposed $332 million acquisition of Anchor Hocking, a subsidiary of Newel1 Rubbermaid, Inc., on grounds that the acquisition would substantially lessen competition in the market for soda-lime glassware sold to the food service industry in the United States. A complaint was filed in the U.S. District Court for the District of Columbia on January 14,2002. The district court granted the Commission's request for an injunction on April 22, 2002. An administrative complaint, issued on May 9, extend the injunction until the conclusion of the administrative proceedings. Pursuant to the delegation of authority, the Commission withdrew the matter from adjudication on July 25,2002, to consider a proposed consent agreement. A consent order was finalized October 7, 2002. Meade Instruments Corporation (May 29,2002): The Commission authorized staff to seek a temporary restraining order and a preliminary injunction to prevent Meade from acquiring any of the assets that could become available as a result of the pending bankruptcy proceedings in Tasco Holdings, Znc. 's Celestron International. According to the Commission, the purchase of the performance telescope assets would eliminate competition in that market and create a monopoly for the Schmidt-Cassegrain telescopes. Meade agreed not to submit any bid for Celestron or its assets. Nestle' HoMings, Znc. (March 4,2003): The Commission authorized staff to seek a preliminary injunction to block the merger of Nestle and Dreyer's Grand Ice Cream, Inc. on grounds that the merger would reduce competition in the highly concentrated market for superpremium ice cream. Nestle markets superpremium ice cream under the Haagen Dazs brand; Dreyer's superpremium brands include Dreamery, Godiva and Starbucks. Before the complaint was filed in a federal district court, the parties agreed to enter into a consent agreement to settle the charges. The final order requires the divestiture of superpremium ice cream brands Dreamery and Godiva, the Whole Fruit sorbet brand, and NestlCs distribution assets to CoolBrands International, Inc. VZasic Pickle Company (October 22,2002): The Commission authorized staff to seek a preliminary injunction to block the proposed acquisition of Claussen Pickle Company by Hicks, Muse, Tate & Furst Equity Fund V L.P., the owner of Vlasic Pickle Company on grounds that the transaction would combine the dominant firm in the market for refrigerated pickles (Claussen) with its most significant competitor in refrigerated pickles (Vlasic). Six days after the complaint was filed in federal district court, the parties abandoned the transaction. C. Commission OpinionsIInitial Decisions Chicago Bridge & lroiz Company (January 7,2005): The Commission upheld in part the ruling of an administrative law judge that Chicago Bridge & Iron's acquisition of the Water Division and the Engineered Construction Division of Pitt-Des Moines, Inc. created a nearmonopoly in four separate markets involving the design and construction of various types of field-erected specialty industrial storage tanks in the United States. In an effort to restore competition as it existed prior to the merger, the Commission ordered Chicago Bridge to reorganize the relevant product business into two separate, stand-alone, viable entities capable of competing in the markets described in the complaint and to divest one of those entities within six months. The parties have 60 days from the final service of the decision and order to file an appeal. On June 27,2004, an administrative law judge upheld the complaint and ordered the divestiture all of the assets acquired in the acquisition. In December 2003, the Commission approved an interim consent order prohibiting Chicago Bridge & Iron from altering the assets acquired from Pitt-Des Moines, Inc. except "in the ordinary course of business." These assets included but were not limited to real property; personal property; equipment; inventories; and intellectual property. D. Court Decisions Arch Coal, Znc. (August 13,2004): The U.S. District Court for the District of Columbia denied the Commission's request for a preliminary injunction to block Arch Coal, Inc.'s proposed acquisition of Triton Coal Company, L.L.C. from new Vulcan Holdings, L.L.C. The parties consummated the deal after the Circuit Court of Appeals for the District of Columbia refused to issue a stay pending an appeal of the district court decision. The Commission decided not to pursue an appeal of the decision of the U.S. District Court for a preliminary injunction to block the sale of Triton to Arch Coal. H.J. Heinz Company (April 27,2001): The U.S. District Court of Appeals for the District of Columbia reversed the federal district court decision and granted the Commission's request for entry of a preliminary injunction to enjoin Heinz's proposed acquisition of Milnor Holding Company, the owner of the Beech-Nut Nutrition Corporation. Within minutes of the Appeals Court decision, the parties abandoned the transact'ion. (Dec. 14,5,2002): 2000): The U.S. District Court for the District of Columbia Swedish Match AB (August granted the agency's request for a preliminary injunction to block the proposed acquisition of the loose leaf chewing tobacco business of National Tobacco Company, L.P. The parties later abandoned the transaction. E. Order Violations Boston Scientific Corporation (March 31,2003): A federal district judge ordered Boston Scientific Corporation to pay $7,040,000 in civil penalties to settle charges that it violated a 1995 consent order when it failed to provide Hewlett-Packard Company with a license to all of its intellectual property and technical information relating to intravascular ultrasound catheters. The complaint was filed on October 31, 2000 by the Department of Justice on behalf of the Commission. The trial was held in August 2002. RHZAG (April I , 2004): RHI AG paid a total civil penalty of $755,686.41 to settle charges that it violated a 1999consent order concerning its acquisition of Global Industrial Technologies, Inc. According to the complaint, filed in the United States District Court for the District of Columbia, RHI not only failed to divest the two refractories plants and other assets to Resco Products, Inc., but it did not completely comply with other provisions required by the settlement agreement. F. Other Comnzission Orders H.J. Heinz Company (December 7,2001): The Commission dismissed the Part 3 administrative complaint after Heinz abandoned its proposed merger with Milnot Holding Company,the owner of Beech-Nut Nutrition Corporation, that would combine the nation's second- and third- largest manufacturers of jarred baby food, respectively. Swedish Match AB (January 5,2001): The Commission dismissed the administrative complaint after Swedish Match and National Tobacco Company, L.P. abandoned the transaction that would give Swedish Match control of 60 percent of the loose leaf chewing tobacco market. G. Administrative Complaints Arch Coal, Znc. (April 6 , 2004): An administrative complaint challenged the proposed acquisition of all the assets of Triton Coal Company, L.L.C. from New Vulcan Coal Holdings, L.L.C. According to the complaint, the acquisition would combine two of the four leading producers of coal in Wyoming's Southern Powder River Basin. The parties closed the transaction after the Circuit Court of Appeals for the District of Columbia refused to issue a stay pending an appeal of the district court decision that denied the Commission's motion for a preliminary injunction. On September 10,2004, the administrative complaint was withdrawn from adjudication. Aspen Technology, Znc. (August 6,2003): The Commission issued an administrative complaint that challenged Aspen's 2002 acquisition of Hyprotech, Ltd. alleging that the acquisition eliminated a significant competitor in the provision of process engineering simulation software for industry. According to the complaint, the acquisition has led to reduced innovation competition in six specific process engineering simulation software markets. In July 2004, under terms of a proposed consent agreement, Aspen agreed to divest Hypotech's continuous process and batch process assets and Aspen's operator training software and service business to a Commission-approved buyer to settle charges in the complaint and resolve the administrative proceedings. The consent order became final December 20,2004. Chicago Bridge & Iron Company N. V. (October 25,2001): The Commission challenged the February 2001 purchase of the Water Division and Engineered Construction Division of Pitt-Des Moines, Inc. alleging that the acquisition significantly reduced competition in four separate markets involving the design and construction of various types of field-erected specialty industrial storage tanks in the United States. The initial decision filed June 27,2003 upheld the complaint. On January 7,2005, the Commission upheld the initial decision in part and issued an order requiring a divestiture. Evanston Northwestern Healthcare Corporation (Febmary 10,2004): An administrative complaint alleges that following Evanston Northwestem Healthcare Corporations's acquisition of Highland Park Hospital prices charged to health insurers for medical services increased and therefore higher costs for health insurance were passed on to consumers of hospital services in the Cook and Lake counties of Illinois. The complaint also alleges that a physicians group affiliated with both hospitals, Eghland Park Independent Physician Group, negotiated prices for physicians on staff at Evanston as well as for several hundred independent physicians not affiliated with either hosuital. According " to the com~laint.these actions constitute illegal rice fixing among competing physicians or physician groups and denies consumers the benefits of competition in physician services. The administrative hearings commenced February 10,2005. - H.J. Heinz Company (November 22,2000): An administrative complaint charged that the proposed acquisition of Milnor Holding Corporation, owner of Beech-nut Nutrition Corporation, would substantially reduce competition in the manufacture and sale of jarred baby food in the United States. On November 1, 2000, the Commission sought an emergency stay from the Court of AppeaIs for the D.C. Circuit after the federal district court denied the Commission's request for a preliminary injunction. The Court of Appeals for the District of Columbia enjoined the transaction. The parties abandoned the proposed transaction and the administrative complaint was dismissed by the Commission. Libbey, Inc. (May 9,2002): An administrative complaint charged that the proposed acquisition of Anchor Hocking, a wholly-owned subsidiary of Newel1 Rubbermaid, Inc. would substantially reduce competition in the market for soda-lime glassware sold to the food service industry in the United States. The complaint was issued after the U.S. District Court in Washington, D.C. enjoined the acquisition pending administrative adjudication. The matter was withdrawn from adjudication on July 25,2002 to consider a proposed consent agreement. A consent order was finalized October 7,2002. MSC. Software Corporation (October 9,2001): An administrativecomplaint challenged the 1999 acquisitions of Universal Analytics, Znc. and Computerized Structural Analysis & Research Corp. alleging that MSC., the dominant supplier of advanced computer-aided engineering software known as "Nastran", acquired the other two suppliers in the market. According to the complaint, the acquisitions eliminated competition and tended to create a monopoly in the market. The complaint was settled by a consent agreement that became final on October 29, 2002. Swedish Match AG (December 21,2000): An administrativecomplaint was issued after the United States Federal District Court for the District of Columbia granted the Commission's motion for a preliminary injunction to block Swedish Match North America from acquiring the loose leaf chewing tobacco brands of National Tobacco Company. The admnistrative complaint alleged that the acquisition would substantially reduce competition by combining the first and third sellers of loose leaf chewing tobacco in the United States. According to the complaint, if the acquisition were consummated, Swedish Match would gain a market share of 60 percent in U.S. sales. The Commission dismissed the administrative complaint after the parties abandoned the transaction. I% Other Best Practices Analysis for Merger Review Process (Announced March 15,2002): The Commission conducted "brown bag" public workshops in Chicago, Los Angeles, New York, San Francisco, and Washington, DC during 2002 to solicit input from a broad range of interest groups who have participated in the Commission's or the Department of Justice's merger review process. The areas under consideration included: the initial waiting period under HSR; the content and scope of the second request; * negotiation of modifications to the second request; special issues concerning electronic records and accounting of financial data. Remedies issues included: the package of assets to be divested; the manner of a proposed divestiture; the proposed buyer of divested assets; the Buyer Up Front; the use of Fix-It-First; the use of Crown Jewel Provisions; third party rights; the risks to competition and to the parties. Workshops held: Workshop on Accounting and Financial Data (July 10,2002) Washington, DC General Session on Best Practices for Merger Investigations (June 27,2002) Washington, DC General Session on Best Practices for Merger Investigations (June 25, 2002) Los Angeles, CA. General Session on Best Practices for Mcrger Investigations (June 12, 2002) Chicago, IL Electronic Records (June 5,2002) Washington, DC General Session on Best Practices for Merger Investigations(June 5,2002) San Francisco, CA Conference on the Price Effects of Mergers and Concentration in the United States Petroleum Industry (January 14,2005,Washington, DC.) The conference reviewed two studies that examined price effects within the petroleum industry: the March 2004 case study of the effects of the Marathon/Ashland Corporation joint venture; the second, the May 2004 report by the Government Accountability Office that examined the effects of mergers and market concentration in the United States petroleum industry. Guidelinesfor Merger Investigations: The Guidelines represent the first outcome of the Best Practices Workshop which began March 2002. Available at www.ftc.opa/2002/12/mergerguides Primary components: Witnesses will be able to obtain investigational hearing transcripts. Documents will no longer have to be sorted or identified by specification. Second sweeps will be avoided whenever possible. In response to second requests,parties will be able to submit documents and other materials in an electronic format rather than in hard copy. Sample products are no longer required by Specification 5(a) of the Model Second Request. Horizontal Merger Investigation Data, Fiscal Years 1996 - 2003 Staff analysis of horizontal investigations. The staff tabulated certain market structure information as it relates to the Commission's decision whether or not to seek relief in specific markets investigated. Released February 2004. Merger Efficiency Roundtable (December 9 - 10,2002;Washington, DC): Experts in mergers and acquisitions from the academic, consulting, and business communities gave presentations on how to determine whether a proposed transaction is likely to generate merger efficiencies. Merger Enforcement Workshop (February 17 - 19,2004) sponsored by the Federal Trade Commission and the Department of Justice. Topics discussed: Hypothetical Monopolist Test Concentration & Market Shares Monopsony Non-Price Competition/Innovation Unilateral Effects Coordinated Effects Uncommitted Entry Efficiencies/Dynamc AnalysisIIntegrated Analysis - Merger Remedies Second Workshop (October 23,2002; New York, New York): Workshop, co-hosted by the Antitrust and Trade Regulation Committee of The Association of the Bar of the City of New York, was designed to gather information from a broad range of interested parties regarding consent order remedies in merger and acquisition matters. 11. Hart-Scott-Rodino Antitrust Improvements Act Enforcement A. Court Decisions The Hearst Trust and The Hearst Corporation (October 11,2001): Hearst and its subsidiary paid a $4 million civil penalty t i settle charges that they failed to include required documents in the notification and report form file in 1998 for the proposed acquisition of Medi. Span International, Inc. The complaint alleged that the omitted documents hindered the antitrust agencies in their review and analysis of the proposed acquisition. The complaint, stipulation and final judgment were filed in U.S. District Court for the District of Columbia by Commission attorneys acting as special attorneys to the United States Attorney General. During fiscal year 2001, the Commission filed a related complaint for a permanent injunction alleging that Hearst and First DataBank created a monopoly through the acquisition of Medi-Span, First DataBank's only other competitor selling software and data detailing information for pharmaceutical prices, descriptions, dosages, and interactions. The Final Order and Stipulation requiring divestiture and disgorgement of profits was entered December 18,2001. - William H. Gates, ZZZ (May 4,2004): William H. Gates, III paid $800,000 in civil penalties to settle charges that he acquired more than ten percent of the voting securities of Republic Services, Inc. without observing the filing and waiting period requirements under the Hart-ScottRodino Antitrust Improvements Act of 1976. The complaint was filed in the federal district court in Washington, DC. B. Consent Orders None C. Complaiizts (Coinplaints filed as part of a consent agreement not listed separately) None D. Complaints - Authorized Arch Coal, Inc. (February 23,2004): The Commission authorized staff to file a complaint in federal district court for a temporary restraining order under Section 7A(g)(2) of the Clayton Act to block Arch Coal's proposed acquisition of Triton Coal Company until Arch Coal substantially complied with the Commission's request for addition information under the Hart-Scott-Rodino Act. After Arch Coal was notified that the Commission authorized a Section 7A(g)(2) complaint, Arch withdrew its Certification of Substantial Compliance with the second request and provided additional information. Blockbuster, Znc. (March 4 , 2005): The Commission tiled a complaint under Section 7A(g)(2) of the Clayton Act in U.S. District Court for the District of Columbia to require Blockbuster, Inc. to provide sufficient and accurate pricing data in compliance with the second request issued by the Commission under the statutory rules of the Hart-Scott-Rodino Act. Blockbuster cannot proceed with its proposed acquisition of Hollywood Entertainment Corporation until 30 days from the date it has substantially complied with the second request. E. Rules and Formal Interpretations Hart-Scott Rodino Final Rulemaking (Effective April 7 , 2005): Final rules adopted from proposed rules published April 8,2004. The amendments require notification of: acquisitions of interests in unincorporated entities and formations of unincorporated entities. The rules also extend the application of certain exemptions, including the intraperson exemption, to unincorporated entities. Hart-Scott Final Rulemaking (Effective March 2,2005): The notification and filing thresholds under the premerger nties have been revised as required by the 2000 amendments to Section 7A of the Clayton Act. Section 7A(a)(2) requires the Commission to revise the jurisdictional thresholds annually, based on the change in gross natlonal product, in accordance with section S(a)(5) for each fiscal year beginning after September 30,2004. Hart-ScoffRodino Reform (Amended Final Rules, Published March 12,2002): Amendments to Parts 801 and 802 of the Premerger Notification Rules. Amendments to Section 802.21: Acquisitions of voting securities not meeting or exceeding greater notification threshold. Hart-Scott-Rodino Reform (Effective February I, 2001): Significant changes in the filing requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The size of transaction threshold increases from $15 million to $50 million. The 15 percent size of transaction threshold is eliminated. Transactions valued at more than $200 million will be reportable without regard to "size of person". The current size of person test will continue to be in place for transactions valued at $200 million or less. All dollar thresholds will be adjusted each fiscal year, beginning with fiscal year 2005, to reflect changes in the gross national product during the previous year. A tiered fee structure replaces the standard $45,000 filing fee for all reportable transactions. Companies will now pay $45,000 for transactions valued at less than $100 million, $125,000 for transactions valued at $100 million to less than $500 million, and $280,000 for transactions valued at $500 mlllion or more. The length of the waiting period that follows substantial compliance with a second request for additional information will become 30 days for most transactions (instead of 20 days under the current law). Whenever the end of any waiting period falls on a Saturday, Sunday or legal holiday, the official end of the waiting period will end on the next regular business day. Minor amendments announced March 20,2001: The changes reflect the new $50 million filing threshold and the revision of a footnote to reflect the size-of-person test for transactions valued at more than $200 million. F. Other Model Retail Second Request (April 28,2004) Model Request for Additional Information and Documentary Material (Second Request) for transactions involving retail industries. Premerger Notification Annual Report to Congress Pursuant to Section 201 of the HartScott-Rodino Antitrust Improvements Act of 1976 (April 30,2001): Twenty-third Annual Report (Fiscal Year 2000). Premerger Notification Annual Report to Congress Pursuant to Section 201 of the HartScott-Rodino Antitrust Improvements Act of 1976 (September 27,2002): Twenty-fourth Annual Report (Fiscal Year 2001). Premerger Noh~cationAnnual Report to Congress Pursuant to Section 201 of the HartScott-Rodino Antitrust Improvements Act of 1976 (August 1,2003): Twenty-fifth Annual Report (Fiscal Year 2002). Premerger Notification Annual Report to Congress Pursuant to Section 201 of the HartScott-Rodino Antitrust Improvements Act of 1976 (September 7,2004): Twenty-sixth Annual Report (Fiscal Year 2003). 111. Non-Merger Enforcement A. Cornmission Oyinionsllnitial Decisions Kentucky Household Goods Camers Association, Znc. (June 21,2004): An administrative law judge upheld an administrative complaint that charged a group of affiliated intrastate movers with engaging in horizontal price-fixing by filing collective rates on behalf of its member motor common caniers for the intrastate transportation of property within the Commonwealth of Kentucky. The judge also ruled that the association's conduct was not protected by the state action doctrine because the State of Kentucky did not supervise the rate-making practices of the group. On July 12,2004, the Kentucky Household Goods Camers Association, Inc. filed an appeal of the initial decision with the Commission. The oral argument was held January 24, 2005. North Texas Specialty Physicians (November 8,2004): An administrative law judge upheld the administrative complaint that charged that the Noah Texas Specialty Physicians, a physician group practicing in Forth Worth, Texas, collectively determined acceptable fees for physician services in negotiating contracts with health insurance plans and other third party payers. The judge ruled that complaint counsel proved that North Texas Specialty Physicians engaged in horizontal price fixing. The accompanying order prohibits the group from negotiating, on behalf of its members, collective pricing of contracts with health plan services for the provision of physician services. On January 14,2005, North Texas Specialty Physicians filed a notice of appeal of the initial decision. The oral argument has not yet been scheduled. Polygram Holding, Znc. (The Three Tenors) (July 24,2003): The Commission upheld the ruling of an administrative law judge and prohibited PolyGram from entering into any agreement with competitors to fix the prices or restrict the advertising of products they have produced independently. The administrative complaint generally known as The Three Tenors and involving respondents PolyGram Holding, Inc.; Decca Music Group Limited; UMG Recordings Inc.; and Universal Music & Video Distribution Corporation charged PolyGram with entering into an illegal price fixing agreement not to advertise or discount earlier albums and video recordings of concerts featunng the Three Tenors in an effort to promote the latest concert, thought to be less appealing to the public. The Commission ordered the respondents to cease and desist from entering into any combination, conspiracy, or agreement - with producers or sellers at wholesale of audio or video products - to "fix, raise, or stabilize prices or price levels" in connection with the sale in or into the United States of any audio or video product. Rambus, Znc. (July 6,2004): The Commission issued a decision that reversed and vacated the initial decision of the administrative law judge and remanded the complaint to the judge for further proceedings. The administrative law judge dismissed all charges against Rambus, Inc., on February 17, 2004, ruling that Commission staff had failed to sustain their burden of proof with respect to all three violations alleged in the complaint. On March 1,2004, complaint counsel filed a notice of appeal. The oral argument was held December 9,2004 Scherirtg-Plough Corporation (December 8, 2003): The Commission reversed the administrative law judge's initial decision that had dismissed all charges of anticompetitive conduct. The Commission found that Schering-Plough Corporation entered into agreements with Upsher-Smith Laboratories, Inc. and American Home Products to delay the entry of generic versions of Schering's branded K-Dur 20, a widely prescribed potassium chloride supplement. According to the opinion, the parties settled patent litigation with terms that included unconditional payments by Schering in return for agreements to defer introduction of the generic products. The Commission entered an order that would bar similar conduct in the future. South Carolina State Board of Dentistry (July 28,2004): The Commission denied the motion of the South Carolina State Board of Dentistry to dismiss allegations in an administrative complaint that the Board adopted a regulation restricting dental hygienists from providing preventive dental services to children on-site in South Carolina schools unless the children were preexamined by a dentist. According to the complaint, the Board's emergency regulation was adopted after the state enacted legislation to provide dental treatment in the schools by dental hygienists. The Commission ruled that the Board was not entitled to protection under the state action doctrine because the Board's actions were not regulated by the State of South Carof na, but were an intent to circumvent state law that eliminated the preexamination requirement. Summit Technology and VZSX (February 7, 2001):The Commission dismissed its complaint after the U.S. patent and Trademark Office issued a Reexamination Certificate of U.S. Patent No. 5,108,388. On June 4,1999 an administrative law judge dismissed charges against VISX, a key developer of laser eye surgery equipment and technology, known as photo refractive keratectomy (PRK). According to the 1998 administrative complaint, VISX and Summit Technology, the only two firms legally able to market equipment for PRK, placed their competing patents in a patent pool and shared the proceeds each and every time a Summit or VISX laser was used. The administrative law judge also dismissed charges that VISX. acquired a key patent by inequitable conduct and fraud on the U.S. Patent and Trademark Office, ling that complaint counsel failed to present evidence that an act of fraud was committed since information was not willfully withheld from the patent office. A final order settled the price fixing allegations in the 1998 complaint. - Toys "R" Us (Commission Decision November 1,2000 Final Order; Initial Decision September 30, 1997): An Administrative Law Judge issued an initial decision that, if made final, would prohibit Toys " R Us from entering into agreements with toy manufacturers and others that result in restrictions on sales to warehouse clubs. TRIJ threatened to stop buying products that were sold to warehouse clubs, which resulted in major toy makers halting the sale of certain products to clubs. The AW found that these practices reduced competition and led to higher toy prices. The initial decision would prohibit the toy chain from entering into any agreement with a supplier to restrict sales to any toy discounter; from facilitating agreements among suppliers that would limit sales to any retailer; and for five years, from refusing to or announcing it will refuse to purchase from a supplier because the supplier sells to a toy discounter. On October 14, 1998 the Commission issued its decision that Toys " R Us had orchestrated horizontal and vertical agreements with and among toy manufacturers to restrict the availability of popular toys to wxehouse clubs. On December 7, 1998,Toys "R" Us filed a notice of appeal in the U.S. District Court for the Seventh Circuit. In August 2000, the Commission's complaint was upheld by Seventh Circuit Court of Appeals. Union Oil of California (November 25,2003): An administrative law judge dismissed a conlplaint in its entirety against Union Oil of California that charged the company with convnitting fraud in connection with regnlatoxy proceedings before the California Air Resources Board regarding the development of reformulated gasoline. The judge ruled much of Unocal's conduct was permissible activity under the Noerr-Pennington doctrine and that the resolution of the issues outlined in the complaint would require an in depth analysis of patent law which he believed were not with the jurisdiction of the Commission. In July 2004, the C o M s s i o n reversed the judge's ruling and reinstated charges that Unocal illegally acquired monopoly power in the technology market for producing a "summer-time" low-emissions gasoline mandated for sale and use by the California Air Resources Board for use in the state for up to eight months of the year. B. Court Decisions Schering-Plough Corporation (March 8,2005) The United States Court of Appeals for the Eleventh Circuit set aside and vacated the Commission decision that found that Schering-Plough entered into agreements with Upsher-Smith Laboratories, Ine. and American Home Products to delay the entry of generic versions of Schering's branded K-Dur 20, a prescribed potassium chloride supplement. C. Authorizations to Seek Preliminary/Permanent Injunctions Alpharma, Znc. and P e r m Company (August 11,2004): The Commission authorized staff to file a complaint in federal district court charging that Alpharma, Inc. and Pemgo Company drove up the prices for over-the-counter store-brand children's liquid ibuprofen through an agreement eliminating competition between the two firms and allowing Pemgo to raise its prices creating higher profits to then be shared between the firms. According to the complaint, while both Alpharma and Pemgo filed for U.S. Food and Drug Administration approval to sell a generic version of children's liquid Motrin, Alpharma was eligible to sell its product at least six months before approval would be granted to Pemgo. The two companies entered into an agreement not to compete whereby Pemgo would sell the children's liquid ibuprofen for seven years and Alpharma, while would not marketing a competing product, would receive an up-front payment and a royalty on Pemgo's sales of the product. To settle the charges, Alphanna and Pemgo paid a total of $6.25 million in illegal profits and agreed not to enter into agreements not to compete when one party to the agreement is a first filer of an abbreviated new drug application. Mylan Laboratories, Znc. (December 22, 1998): Complaint filed in the U.S. District Court for the District of Columbia charged Mylan with restraint of trade, monopolization and conspiracy to monopolize the market for two generic drugs used to treat anxiety, lorazepam and clorazepate, through exclusive dealing arrangements. The complaint seeks consumer redress of at least $120 million and to enjoin the alleged illegal exclusive licensing agreements. Federal District Court Judge Hogan released a 46 page decision upholding the Commission's authority to seek restitution in antitmst injunction actions under Section 13(b) of the Federal Trade Commission Act. November 29,2000: Commission approved a $100 million settlement-the largest monetary settlement in Commission history. The opinion settled Commission concerns that Mylan, Gyma Laboratories of America, Inc., Cambrex Corporation and Profarmaco S.R.L. conspired to deny Mylan's competitors ingredients necessary to manufacture lorazepam and clorazepate. On April 27, 2001, the U.S. District Court for the District of Columbia granted preliminary approval to a plan of distribution to injured consumers who paid the increased prices and state agencies, including Medicaid programs, that purchased the drugs while the illegal agreements were in effect. The court granted final approval of the settlement February 1,2002. The funds were distributed by the states. D. Consent Orders Alaska Healthcare Network (Final Order April 25,2001): An association of 86 physicians practicing in the Fairbanks, Alaska area settled charges that the Alaskan Healthcare Network illegally formulated a fee schedule based on its members' current prices for use in negotiations with third-party payers in an effort to obtain higher prices for medical services. American Home Products Corporation (Final Order April 5,2002): A consent order settled charges that American Home Products entered into an anticompetitive agreement with ScheringPlough Corporation to delay the entry of a low-cost generic drug that would be in direct competition with a branded version developed and manufactured by Schering. According to the complaint issued with the consent, Schering illegally paid American Home millions of dollars to delay the entry and sale of its generic version of Schering's K-Dur 20, a drug used to treat patients who suffer from insufficient levels of potassium, a condition that could lead to cardiac problems. The consent order, which expires in 10 years, prohibits American Home Products from entering into such agreements in the future. On December 8,2003, the Commission issued an opinion that found thatthe agreements between Schering and Upsher-Smith and American Home Products violated the antitrust laws. The Commission entered an order for Schering - and Upsher-Smith that is similar to the American Home Products order. American Institute for Conservation of Historic and Artistic Works (Final Order October 30,2002): A consent order settled charges that the American Institute for Conservation of Historic and Artistic Works adopted and enforced provisions in its rules of conduct that prohibited professional conservators to work for free or at reduced fees. The association agreed to remove all provisions from its Code of Ethics, and its Commentaries to the Guidelines for Practice that are inconsistent with the order. Professional conservators manage and preserve cultural objects (including historical scientific, religious, archaeological and artistic objects). Anesthesia Service Medical Group, Znc. and Grossmont Anesthesia Services Medical Group (Final Order July 11,2003): Two anesthesiologists groups settled charges that they entered into joint agreements to establish fees and services from Grossmont Medical Hospital in San Diego County. Specifically, the groups agreed on fees that both would demand from health care insurance companies and other third party payers for taking call for obstetrics and providing services to uninsured emergency room patients. Together, the two groups are composed of approximately 200 physicians that provide competing anesthesiology services in the San Diego area. Aurora Associated Primary Care Physicians, L.L.C. (Final Order July 19,2002): A consent order settled charges that the organization of internists, pediatricians, family physicians and general practitioners in the Aurora, Colorado area engaged in boycotts and entered into collective negotiations with health care insurers in an effort to increase the costs of physician services. The order prohibits the organization from entering into any agreement with insurance payers or providers to negotiate fees on behalf of the physicians group. Biovail Corporation (Final Order October 2,2002): The Commission charged Biovail Corporation with illegally acquiring an exclusive patent license for Tiazac, a pharmaceutical used to treat high blood pressure and chronic chest pain. The complaint further alleged that Biovail, in an effort to maintain its monopoly, wrongfully listed the acquired license in the U.S. Food and Drug Administration's "Orange Book" for the purpose of blocking generic competition to its branded Tiazac. The consent order requires Biovail to divest part of its exclusive rights to DOV, prohibits the firm from taking any action that would trigger additional statutory stays on final FDA approval of a generic form of Tiazac; and also prohibits Biovail from wrongfully listing any patents in the Orange Book for a product for which the company already has an New Drug Application from the FDA. Biovail Corporation and Elan Corporation (Final Order August 20,2002): A consent order settled charges that Biovail and Elan Corporation entered into an agreement that contained substantial monetary incentives not to compete in the market for specified dosages of generic forms of Adalat CC, a drug used to treat hypertension. The final consent order requires the companies to terminate their agreement and prohibits them form entering into similar agreements in the future. This is the Commission's first enforcement action involving an allegedly anticompetitive agreement between two competing generic drug manufacturers. Bristol-Myers Squibb Company (Final Order April 14,2003): Bristol-Myers Squibb Company (BMS) settled charges that it engaged in illegal business practices to delay the entry of three low price generic pharmaceuticals that would he in direct competition with three of its branded drugs. The complaint alleged that BMS purposely made wrongful listings in the Orange Book of the U.S. Food & Drug Administration and that it also paid a potential competitor over $70 million to delay the entry of its generic drug. The three drugs involved in the complaint are: Tmol (containing the active ingredient paclitaxel) - used to treat ovarian, breast, and lung cancers; Platinol (containing the active ingredient cisplatin) - used for the treatment of various forms of cancer; and BuSpar (containing the active ingredient buspirone) - used to manage anxiety disorders. Carlsbad Physician Association (Final Order June 13,2003): A New Mexico physician organization settled charges that it and its members entered into agreements to fix prices and to refuse to deal with third party payers and other health care plans except on collectively agreedupon terms. Clark County, Washington Attorneys Final Order July 23,2004): Private attorneys in Clark County, Washington who provide criminal legal services for indigent defendants under a county contract settled charges that they illegally entered into an agreement known as the "Indigent Defense Bar Consortium Contract" to collectively demand higher fees for certain types of cases and refuse to accept specific additional cases unless the Clark County complied with their demands. The county was forced to substantially increase the reimbursement rate for each of the case categories specified in the Consortium Contract. According to the Commission, the conduct of the attorneys was identical to the boycott staged by criminal defense attorneys in Washington, DC which was ruled to be price fixing by the U.S. supreme Court in the matter of Superior Court Trial Lawyers Association. Robert Lewis, James Sowder, Gerald Wear, and Joel R. Yoseph, the four attorneys who led the activities and served as the representatives of the 43 attorneys who signed the Consortium Contract, were named in the complaint and in the consent order. Evanston Northwestern Healthcare Corporation (Proposed Consent Agreement Accepted for Public Comment February 23,2005): Under terms of a proposed consent order, Evanston Northwestern Healthcare Corporation agreed not to negotiate fee-for-service contracts. The I I of an admnistrative complant Issued February proposed order settled charges under Count J 10.2004. FMC Corporation and Asahi Chemical Industry Co. Ud. (Final Order June 12,2002): A consent order settled charges that FMC and Asahi Chemical Industry Co. Ltd. of Japan entered into a conspiracy to divide the world market for micmrystalline cellulose (MCC), a binder used in making pharmaceutical tablets, into two tenitories. According to the complaint, FMC allegedly agreed not to sell the pharmaceutical to customers in Japan or East Asia without Asahi Chemical's consent, while Asahi Chemical agreed not to sell the pharmaceutical to customers in North America or Europe without the consent of FMC. The final order prohibits such behavior in the future and restricts FMC from acting as the U.S. distributor for any competing manufacturer of microcrystalline cellulose (including Asahi Chemical) for 10 years. In addition, for five years, FMC is prohibited from distributing in the United States any other product manufactured by Asahi Chemical. Hoechst Marion Roussel (renamed Aventis as a result of the merger between Hoechst AG and Rhone-Poulenc S.A.) (Final Order April 2,2001): A consent order settled allegations in an administrative complaint that charged that Hoechst agreed to pay Andrx Corporation millions of dollars not to market and distribute a generic version of Hoechst's branded Cardizem CD, a once-a-day diltiazem drug product used in the treatment of hypertension and angina. The consent order prohibits the companies from entering into agreements designed to restrict the entry of generic competitors in an attempt to monopolize relevant markets . Indiana Household Movers and Warehousemen, Inc. (Final Order April 25,2003): The corporation that represents household goods movers in Indiana settled charges that it filed collective intrastate rate tariffs with the State's Department of Revenue on behalf of its members. According to the complaint issued with the consent order, these collective filings reduced competition for household goods moving services within the state. Institute of Store Planners (Final Order May 27,2003): Under the terms of a final consent order, The Institute of Store Planners is required to remove from its Code of Ethics any provision that prohibits its members from providing their services for free and any provision that prohibits competition with other members for work on the basis of price. Its members provide architectural store design and store and merchandise planning to retail stores. Iowa Movers and Warehousemen's Association (Final Order September 10,2003): The Iowa Movers and Warehousemen's Association settled allegations that it filed collectively established tariffs for intrastate moving rates in Iowa - a practice which did not meet the requirements of the state action doctrine. Under the state action doctrine, some practices of private firms are protected against scmtiny by the federal antitrust laws. Maine Health Alliance (Final Order August 27,2003): A network of doctors, hospitals, and its executive director, William R. Diggins, settled charges that they illegally engaged in pricefixing activities that raised health care costs in five Maine counties by negotiating jointly with third-party payers in a effort to obtain higher compensation and more advantageous contract terms for its members. Memorial Hermann Health Network Providers (Final Order January 18,2004): Memorial Hermann Health Network Providers settled charges that it negotiated fees and other services for medical care provided by its member physicians in the Houston, Texas area in an effort to obtain higher fees and more advantageous terms. According to the complaint these alleged price fixing practices increased costs for consumer, employers, and health plans. Minnesota Transport Services Association (Final Order September 15,2003): A consent order settled charges that the household goods movers association filed collectively established rate tariffs for its members in Minnesota, conduct that was not protected by the state action doctrine. Under a state action doctrine, some private companies may be protected from the federal antitrust laws if the state authority regulates and regularly reviews the operations and practices of the companies. National Academy of Arbitrators (Final Order January 13,2003): The National Academy of Arbitrators is prohibited from adopting policies that restrict its members from advertising truthful information about their services, including prices and conditions of services, under terms of a consent order. The association is required to remove all provisions that do not conform to the provisions in the consent order from: (1) its Code of Professional Responsibility for Arbitrators of Labor-Management Disputes; (2) its Formal Advisory Opinions; (3) any Statements of Policy; and (4) its Web site. New Hampshire Motor Transport Association (Final Order December 4,2003): The New Hampshire Motor Transport A$sociation settled charges that it filed tariffs containing rules that called for automatic increases in intrastate rates. In addition, the organization agreed to void its collectively filed tariffs current in effect in New Hampshire. Obstetrics & Gynecology Medical Corporation of Napa Valley (Final Order May 14, 2002): A doctors' group consisting of nearly every obstetrician and gynecologist with active medical staff privileges at the two general acute care hospitals in Napa County, California settled charges that they restrained price and other competition by engaging in illegal agreements to fix fees and other terms of dealing with health care insurance plans. According to the complaint issued with the consent order, the doctors refused to deal with the third party payers except on collectively determined te,rms. The consent order not only prevents the doctors from engaging in similar practices in the future but also requires the dissolution of the group. I Physician Network Consulting, L.L.C. (Final Order August 27,2003): The Physician Network Consulting, L.L.C. of Baton Rouge Louisiana; Michael J. Taylor; Professional Orthopedic Services, Inc; The Bone and Joint Clinic of Baton Rouge, Inc.; Baton Rouge Orthopaedic Clinic, L.L.C.; and Orthopaedic Surgery Associates of Baton Rouge, L.L.C. settled charges that they entered into agreements to fix pnces and other terms on which they would deal with United Healthcare of Louisiana, Inc., a health insurance company. Physician Network Consulting is an agent for Professional Orthopedic Services' members. Preferred Health Services, Znc. (Proposed Consent Agreement Accepted for Public Comment Februarv 25,2005): . A uroposed consent order prohibits Preferred Health Services from orchestrating collective agreements and other terms for physician services when negotiating with health insurance plans and other third party payers. According to the complaint issued with the proposed consent order, these agreements among the physician-hospital organization of doctors and the Oconee Memorial Hospital in northwestern South Carolina to collectively negotiate fees and terms of services could lead to higher health care costs and limited physician access. & * Professional Integrated Services of Denver, Znc., Michael J. Guese, M.D., and Marcia A. Brauchler (Final Order July 19, 2002): A consent order settled charges that a Denver, Colorado physician organization and its members, its president, Dr. M. J. Guese, and its nonphysician consultant, M. A. Brauchler, increased fees for services through collective boycotts and agreements in a effort to fix the prices they would receive from health care insurance payers. The order prohibits the organization and its members and other respondents from entering into any agreement with insurance payers or providers to negotiate on behalf of the physicians group. ProfessionaIs in Women's Care (Final Order October 2,2002): Eight Denver, Colorado physician groups specializing in obstetrics and gynecology and their non-physician agent settled allegations that the practice group and other physicians entered into collective contracts in an effort to increase prices and terms of services when dealing with health insurance firms and other third-party payers. The consent order prohibits the following respondents from entering into such agreements in the future: R.T. Welter and Associates, Inc.; R. Todd Welter; Consultants in Obstetrics and Gynecology, P.C.; Mid Town Obstetrics & Gynecology, P.C.; Mile High OGIGYN Associates, P.C.; The OB-GYN, P.C.; The Women's Health Group, P.C.; Cohen and Womack, M.D., P.C.; and Westside Women's Care, L.L.P. Southeastern New Mexico Physicians ZPA (Final Order August 6,2004): A Roswell, New ,Mexico physicians' association, southeastern New Mexico Physicians P A , settled charges that it and two of its employees entered into collective agreements among physician members on fees and refused to deal with health plans that did not accept the collective agreed-upon terms. According to the complaint, these practices increased the price of health care in the Roswell area. The consent order prohibits the IPA and its employees named in the consent from orchestrating agreements between physicians to negotiate with health insurance plans on behalf of any physician and deal or refuse to deal individually with any third party payer. South Georgia Health Partners, L.L.C. (Final Order October 31,2003): A Georgia physician-hospital organization and its other associated physician groups settled charges that they entered into agreements to fix physician and hospital prices and refused to deal with insurance companies, except on collectively agreed-upon terms. SPA Health Organization dba Southwest Physician Associates (Final Order July 17, 2003): A physician group in the DallaslFort Worth, Texas area settled charges that it collectively bargained on behalf of its members to negotiate fee schedules with third party payers and other health insurance companies. According to the complaint, issued with the consent order, these practices decreased competition and increased prices for the provision of medical services to area consumers. Surgical Specialists of Yakima (Final Order November 11,2003): The Surgical Specialists of Yakima, Cascade Surgical Partners, Inc., P.S. and Yakima Surgical Associates, P.S. settled charges that they jointly entered into agreements for their members to fix prices and terms for the provision of medical services when dealing with health care insurers. 1 System Health Providers (Final Order August 20, 2002): System Health Providers and its parent corporation, Genesis Physicians Group, Inc., settled charges that they collectively bargained with health insurance finns to accept proposed fee schedules; discouraged members from entering into contracts directly with payers; and refused to deal with health insurance firms and other third-party payers except on collectively agreed upon terms. The order prohibits the recurrence of the alleged practices and actions. Tenet Healthcare Corporatiorr (Final Order January 29,2004): A consent order prohibits Frye Regional Medical Center, Inc., an acute care hospital in Hickory, North Carolina, and its parent company Tenet Healthcare Corporation from entering into any agreement to negotiate fees on behalf of any physician practicing in four North Carolina counties and from refusing to deal with insurance companies and other payers. Also refer to related administrative complaint issued to Piedmont Health Alliance. This settlement is the first case in which the Commission has named a hospital as a participant in an alleged physician price-fixing conspiracy. Virginia Board of Funeral Directors and Embalmers (Final Order October 1,2004):The Virginia Board of Funeral Directors and Embalmers settled charges that it prohibited Virginia funeral directors and service providers from engaging in truthful advertising to notify consumers of prices and discounts for funeral products and services. Under terms of the consent order, the Board is prohibited from engaging in such practices in the future and is required to amend its regulation prohibiting Board licensees from advertising funeral services including those services that can be contracted prior to the death of the person whose funeral is being planned. Warner Communications Znc. (Final Order September 17,2001): Warner Communications, Inc. and Vivendi Universal S.A. settled charges that they entered into agreements to fix prices and restrict advertising. According to the complaint issued with the consent order, the two firms formed a joint venture to distribute compact discs, cassettes, videocassettes of the public performances of the Three Tenors. The venturers agreed not to advertise or discount the 1990 and 1994 concerts of the Three Tenors in an effort to restrict competition with the recordings of the1998 concert recording. The 1998 concert was thought to be less appealing and not as popular as the earlier performances. The consent order prohibits the firms from restraining competition by entering into agreements fix prices or restrict advertising in the future. Washington University Physician Network (Final Order August 22,2003): A consent order prohibits a St. Louis, Missouri physicians' organization from negotiating with third party payers on behalf of its member physicians and from refusing to deal with health insurance companies. White Sands Health Care System, L.L.C. (Final Order January 1I, 2005): A consent order settled charges that the White Sands Health Care System refused to deal with health care insurers that resisted the collectively negotiated prices set by its member physicians and nurse anesthetists. The complaint alleged - that these practices increased costs for health care for consumers in the Alamogordo, New Mexico area. White Sands, a physician-hospital organization, consists of Alamogordo Physicians, an independent practice association; Gerald Champion Regional Medical Center, and 31 non-physician health care providers, including all five nurse anesthetists in the area. E. Administrative Complaints AZabama Trucking Association, Znc. (July 8,2003): An administrative complaint charged that the association of household goods movers engaged in the collective filing of tariffs on behalf of its members who compete in the provision of moving services in the state of Alabama. Under terms of a final consent order issued October 28,2003, Alabama Trucking Association, Inc. agreed to stop filing tariffs containing collective intrastate rates and to voidcollectiveiy filed tariffs currently in effect in Alabama. California Pacific Medical Group dba Brown and Toland Medical Group (July 8,2003): An administrative complaint charged a San Francisco, California physicians' organization with engaging in an agreement under which its competing members agreed collectively on the price and other terms on which they would enter into contracts with health plans or other third party payers. The complaint also alleged that Brown and Toland directed its physicians to end their preexisting contracts with payers and required its physician members to charge specified prices in all Preferred Provider Organization contracts. A final consent order issued February 3,2004, prohibits Brown and Toland from negotiating with payers on behalf of physicians, refusing to deal with payers, and setting terms for physicians to deal with payers, unless the physicians are clinically or financially integrated. Gerald Wear Joel R. Yoseph Refer to discussion under Chrk County Attorneys Refer to discussion under Clark County Attorneys Kentucky Household Goods Cam'ers Association, Znc. (July 8,2003): An administrative complaint charged that the association composed of competing household goods movers filed collective rates for intrastate moving services in the state of Kentucky. According to the complaint, these activities were not protected under the state action doctrine and are not immune from federal antitrust scrutiny. Movers Conference of Mzksissippi, Znc. (July 8,2003): An administrative complaint charged that the association composed of competing household goods movers filed collective rates for intrastate moving services in the state of Mississippi. According to the complaint, these activities were not protected under the state action doctrine and are not immune from federal antitrust scrutiny. Under terms of a final consent order issued October 28,2003, the Movers Conference agreed to stop filing tariffs containing collective intrastate rates. North Texas Specialty Physicians (September 16, 2003): An administrative complaint charged that the corporation of 600 physicians negotiated the price and other terms of medical services that its participating physicians would accept in contracting with thil-d party payers. According to the complaint, the exchange of prospective price information among otherwise competing physicians reduced competition and enabled the physicians to achieve supracompetitive prices. The initial decision filed November 16, 2004 is presently on appeal to the Piedmont Health Alliance, Inc. (December 22,2003): An administrative complaint charged Piedmont Health Alliance, Inc. with collectively setting prices it demanded for physician services with third party payers. According to the complaint, the physician-hospital organization entered into signed agreements on behalf of its member physicians to participate in all contracts negotiated and to accept the negotiated physician fees. The complaint further alleges that these practices eliminated price competition among physicians in the North Carolina counties of Alexander, Burke, Caldwell and Catawba. The complaint also names ten individual physicians who participated in the alleged price fixing services. On August 10, 2004, the organization and physicians agreed to settle charges that they fixed prices for medical services. On October 1, 2004, a final consent order prohibited Piedmont Health Alliance, Inc. and the ten physicians from entering into any such agreements with physicians in the area that negotiate fees or terms of services with health insurance companies or other third party payers. Also refer to settlement entered with Tenet Healthcare Corporation @rye Regional Medical Center, Inc.). Polygram Holding, Inc. (The Three Tenors) (July 30,2001): An administrative complaint i I charged that the Warner and PolyGram Music Group joint venture ageed not to discount or advertise the 1990 and 1994 Three Tenors albums and videos in an attempt to promote the 1998 Three Tenors concert. The complaint further alleged that the parties to the venture, formed to distribute compact discs, cassettes and video cassettes, was concerned that the 1998 performance would not be as well received as the earlier recordings. An initial decision upheld the complaint. The Commission issued an opinion that affirmed the initial decision. The decision is on appeal in the District of Columbia Court of Appeals. Rambus, Inc. (June 19, 2002): An administrative complaint charged that between 1991 and 1996, Rambus joined and participated in the JEDEC Solid State Technology Association (JEDEC), the leading standard-setting industry for computer memory. According to the complaint, JEDEC rules require members to disclose the existence of all patents and patent applications that relate to JEDEC's standard-setting work. While a member of JEDEC, Rambus observed standard-setting work involving technologies which Rambus believed were or could be covered by its patent applications, but failed to disclose this to JEDEC. In 1999 and 2000, after JEDEC had adopted industry-wide standards incorporating te technologies at issue and the industry had become locked in to the use of those technologies, Rambus sought to enforce its patents against companies producing JEDEC-compliant memory, and in fact has collected substantial royalties from several producers of DRAM (dynamic random access memory). An initial decision dismissed the charges. Robert Lewis Refer to discussion under Clark County Attorneys Schering - Plough Corporation (March 30, 2001): The complaint alleged that Schering Plough, the manufacturer of K-Dur 20 - a prescribed potassium chloride, used to treat patients with low blood potassium levels - entered into anticompetitive agreements with Upsher-Smith Laboratories and American Home Products Corporation to delay their generic versions of the KDur 20 dmg from entering the market. According to the charges, Schering-Plough paid UpsherSmith $60 million and paid American Home $15 million to keep the low-cost generic version of the drug off the market. The charges against American Home were settled by a consent agreement. An initial decision filed July 2,2002 dismissed all charges against Schering - Plough and Upsher-Smith Laboratories. A Commission opinion found that the agreements violated the Federal Trade Commission Act. On March 8,2005, the Eleventh Circuit Court of Appeals set aside and vacated the Commission decision. 1 I 1 1 South Carolina State Board of Dentktry (September 12,2003): An administrative complaint alleged that the South Carolina State Board of Dentistry prevented dental hygienists from providing dental care and services on-site to children in South Carolina schools. According to the complaint, the Board passed regulation that required the children to have a dentist examine the children before they would be eligible for the school dental program. The complaint further alleged that this provision decreased competition in the delivery of preventive dental services to school-aged children. On July 30,2004, the Commission denied the motion of the Board to dismiss the complaint on grounds that its actions were protected from antitrust scrutiny under the state action doctrine. The South Carolina State Board of Dentistry appealed the Commission opinion to the Fourth Circuit Court of Appeals. Union Oil Company of California (March 4,2003): An administrative complaint charged that [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Aftc%3Ab368bbe2b1129cc9. Public record. Not legal advice.