January 23, 2014
Every year, the dollar thresholds under the HSR Act are adjusted for changes in the gross national product. The new thresholds will take effect on February 24, 2014.
Most importantly, the size-of-transaction threshold will increase from the current $70.9 million to $75.9 million, so that once effective, acquisitions of voting stock or assets valued at more than $75.9 million may be reportable.
For more information on the revised thresholds, click here
For the text of the FTC's Federal Register notice, click here
The Hart-Scott-Rodino Act
The HSR Act form and instructions
FTC HSR web page
January 13, 2014
On January 12, 2014, the District Court for the Northern District of California found that Bazaarvoice’s June 12, 2012 acquisition of PowerReviews violated Section 7 of the Clayton Act, which prohibits any merger that may substantially lessen competition. The decision demonstrates that agencies and courts will continue to apply traditional methods of merger analysis based on market definition and market concentration even when customers have not opposed the transaction and the overlapping revenues involved appear to be small. The Court rejected claims that Google, Amazon, Facebook and other e-Commerce giants were competitive constraints and placed particular weight on the parties’ internal documents, once again showing how difficult it can be for merging parties to impeach their own unhelpful documents.
for an S&S client memorandum analyzing the case.
United States v. Bazaarvoice, Inc., Memorandum Op., No. 13-cv-00133 (N.D. Cal. Jan. 8, 2014)
April 27, 2013
This note provides a much expanded sample of antitrust-related provisons in M&A agreements over the one we posted in August 2012. As before, the sample provisions have been taken (sometimes with a little modification) from actual M&A agreements.
This sample will give you with a good idea of the wide variety of provisions parties have used in dealing with
the jurisdictions and the timing where merger control filings are to be made;
the level of cooperation the parties owe each other in defending the transaction;
who controls the defense strategy
the antitrust-related conditions precedent
whether the parties are obligated to litigate an adverse agency decision and, if so, who controls the litigation strategy and how long will the parties have to litigate before the drop-dead date;
whether the buyer is obligated to "fix" any antitrust concerns through consent decree relief and how far this obligations goes;
whether an antitrust reverse termination fee is to be paid in the event of a failure of the antitrust conditions; and
the conditions under which the agreement may be terminated or the drop-dead date extended
Of course, every deal stands on its own. The language that has been used in one deal may not be appropriate for another deal, and inclusion of a provision in this sample does not constitute an endorsement of the language. Still, I find the collection helpful in drafting and negotiating the antitrust provisions in M&A agreements.
US Antitrust Categories
EU Antitrust Categories
S&S Antitrust Seminar Series