In M&A transactions, early involvement of antitrust counsel is essential to avoid unnecessary expense, delay and antitrust risks. Failure to involve antitrust counsel early on in the process may not only jeopardize the parties’ ability to obtain antitrust clearance, but it can also give rise to potential exposure for independent antitrust violations and deal risk. This article discusses five avoidable antitrust pitfalls to keep in mind early in any transaction planning process.
Today the Department of Justice announced that Horizon Lines LLC agreed to plead guilty and pay a $45 million fine for its involvement in price fixing coastal water freight services between the continental U.S. and Puerto Rico. This plea is the result of an ongoing federal antitrust investigation into price fixing and bid rigging in the coastal water freight transportation industry. As a result of the investigation, five former executives have been charged and sentenced to serve prison time.
The DOJ and USDA just completed a series of five workshops on competition in the agriculture industry. The two agencies have a renewed their focus on competition in this industry and have promised more activity in this area. The highlights from each of the workshops is described below.
An overview of all five workshops: Issues of Concern to Farmers, March 12, 2010, Iowa
Opening statements and roundtable remarks by Attorney General Eric Holder, Assistant Attorney General Christine Varney and Secretary of Agriculture Tom Vilsack.
There was discussion about concentration in the seed industry and lack of choice among seed trait companies. Also, farmers voiced concern about patents that nearing expiration where there are no generics yet in the pipeline. (Subsequent to this workshop Monsanto announced it would pay for all regulatory approvals of Round Up Ready soybean patent through 2021 even though the patent expires in 2014).
The discussion from pork and livestock farmers centered on fairness, transparency and increased enforcement of existing laws such as the Packers and Stockyards Act.
Poultry Industry, May 21, 2010, Alabama
Opening statements and roundtable remarks by Attorney General Eric Holder, Assistant Attorney General Christine Varney and Secretary of Agriculture Tom Vilsack.
Mr. Holder announced the launch of the Agriculture Competition Joint Task Force, which is comprised of individuals from the DOJ and USDA.
There was discussion about the fairness of poultry contracts and transparency in the industry.
There were also comments on the lack of concentration of poultry processing companies, which reduces the choice farmers have.
Dairy Industry, June 25, 2010, Wisconsin
Opening statements and roundtable remarks by Assistant Attorney General Christine Varney and Secretary of Agriculture Tom Vilsack. (AG Eric Holder did not attend).
There was discussion about the gap between the prices consumers pay (relatively high) and prices that dairy farmers are paid by processors (relatively low). The farmers are getting squeezed and having to sell below cost.
Consolidation in grocery retailing and the price pressure exerted by large retailers on dairy coops, as well as consolidation in dairy processors, were cited as a cause of low prices to farmers.
Livestock Industry, August 27, 2010, Colorado
Opening statements and roundtable remarks by Attorney General Eric Holder, Assistant Attorney General Christine Varney and Secretary of Agriculture Tom Vilsack.
The workshop focused on issues regarding the ability of cattle and hog producers to earn sustainable returns.
There was discussion about whether reducing the market power of the packers and increasing bid competition for cattlemen’s animals would raise prices that cattlemen could obtain.
There was also discussion about how concentration of packers and concentration among retail grocers negatively affects prices producers can get for their livestock.
Margins, December 8, 2010, Washington, D.C.
Opening statements and roundtable remarks by Attorney General Eric Holder, Assistant Attorney General Christine Varney and Secretary of Agriculture Tom Vilsack.
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