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FTC’s Reporting Rule for Pharmaceutical Patent Transfers Upheld

by Daniel Powers | Jun 4, 2014 | FTC Developments, IP Antitrust

On May 30, 2014, the U.S. District Court for the District of Columbia ruled in favor of the Federal Trade Commission (FTC) in a dispute with the Pharmaceutical Research and Manufacturers of America (PhRMA) regarding the Commission’s authority to require the pharmaceutical industry to report certain transfers of exclusive patent rights under the Hart-Scott-Rodino (HSR) Act.

The dispute centered on a Final Rule promulgated by the FTC in November 2013. Patents are considered assets by the FTC and their transfer may be reportable. Some transactions provide for the transfer of certain exclusive patent rights without implicating the transfer of the patent in its entirety. The FTC maintains that the exclusive right to commercially use all or part of a patent is, in substance, identical to a full acquisition of the patent. The challenged rule was intended to clarify the circumstances when a transfer of exclusive rights to a pharmaceutical patent is considered a potentially reportable acquisition of an asset under the HSR Act.

PhRMA sued to have the new rule set aside. PhRMA contended in its complaint that the FTC lacked the statutory authority to issue rules that target a single industry, as opposed to rules of general effect. The trade organization also contended that the FTC failed to establish a rational basis for an industry-specific rule and that it failed to comply with legally required procedures in instituting the rule. PhRMA and the FTC both filed motions for summary judgment.

In granting summary judgment to the FTC, Judge Beryl Howell agreed that Congress had never spoken in the HSR Act to the specific issue of whether the FTC was authorized to issue industry-specific rules: “Nothing in this text restricts the FTC to generating only general rules rather than industry specific rules.” Given the congressional silence on this specific question, the court next considered whether the FTC’s interpretation of the statue was a permissible one. Under the applicable legal standard, an agency’s rule is entitled to deference “as long as it is a permissible construction of the statute.” The FTC contended that the Final Rule did not expand “‘HSR requirements to parties or transactions not covered by the Act,’ but ‘simply clarif[ied] the types of transactions that constitute asset transfers for which the Act requires prior notification.’” The court concluded this was a permissible construction of the authority granted to the FTC under the HSR Act.

FTC and DOJ Release FY 2013 HSR Annual Report

by Emily Townsend | May 27, 2014 | DOJ Developments, FTC Developments

On May 21, 2014, the Federal Trade Commission (FTC) and Department of Justice (DOJ) released the Hart-Scott-Rodino Annual Report covering Fiscal Year (FY) 2013 (October 1, 2012 – September 30, 2013). The report describes key merger enforcement actions over the past year and provides interesting data regarding the agencies’ antitrust enforcement activity.

Specifically, the report indicates that in FY 2013, 1,326 transactions were reported under the Hart-Scott-Rodino (HSR) Act, representing an approximate 7 percent decline in reported transactions from FY 2012. The FTC was granted clearance to investigate 145 of these transactions, while the DOJ was granted clearance to investigate 72 transactions. Of the 145 transactions the FTC investigated in FY 2013, it only issued 25 second requests. In other words, the FTC only issued second requests in 17.2 percent of its investigations in FY 2013. The DOJ’s Antitrust Division, on the other hand, issued second requests in 22 of the 72 transactions it was granted clearance to investigate (i.e., 30.6 percent of its investigations).

However, of the FTC’s 25 second requests in FY 2013, it brought 23 merger enforcement actions. That is, the FTC brought enforcement actions in more than 90 percent of the transactions for which it issued a second request in FY 2013. The DOJ’s Antitrust Division brought only 15 merger enforcement actions in FY 2013, or just under 70 percent of the transactions for which it issued a second request (15 out of 22).

This information can be a helpful tool to assist clients in evaluating their chances before the merger enforcement agencies at various stages of the HSR notification process. While the FTC and DOJ together only investigated 217 transactions in FY 2013, most of those investigations were brought by the FTC. Furthermore, the agencies’ decisions to issue second requests made it increasingly likely that they would bring enforcement actions to block or unwind the transactions, particularly with respect to the FTC.

Federal Trade Commission Announces Revised, Higher Pre-merger Filing Thresholds

by Emily Townsend | Jan 21, 2014 | FTC Developments, Mergers & Acquisitions

On January 17, 2014, the Federal Trade Commission (FTC) announced revised, higher Hart-Scott-Rodino (HSR) pre-merger notification filing thresholds. The FTC adjusts the HSR thresholds annually to represent the increase or decrease in GNP. These revised thresholds will become effective 30 days from the date on which notice is published in the Federal Register, which should occur within the next week. As such, we expect that these new thresholds will become effective by late February. Once we know the precise effective date for these adjusted thresholds, we will publish an On The Subject that can be distributed to clients. Clients with transactions pending may benefit from the higher threshold if the transaction closes on or after the effective date and ultimately falls below the revised threshold.

Most notably, the size-of-transaction threshold, which frequently determines whether a transaction requires an HSR notification, will increase from $70.9 million to $75.9 million. Other thresholds will increase as well, including thresholds for the size-of-person test, filing fees and certain exemptions. The revised thresholds are as follows:

Original Threshold

2014 Adjusted Threshold

$10 million $15.2 million $50 million $75.9 million $100 million $151.7 million $110 million $166.9 million $200 million $303.4 million $500 million $758.6 million

Generally, a transaction requires an HSR notification if it meets the applicable size-of-transaction and/or the size-of-person tests, described briefly below, and does not fall within any exemptions.

A transaction meets the size-of-transaction test if, as a result of the transaction, the acquiring party holds assets, voting securities or a controlling interest in a non-corporate entity valued in excess of

$50 million, as adjusted ($75.9 million upon the effective date of these revised thresholds), assuming the size-of-person test is met, or
$200 million, as adjusted ($303.4 million upon the effective date of these revised thresholds) — this threshold applies to transactions even if the size-of-person test below is not met.

For the size-of-person test, upon the effective date of these revised thresholds, a transaction resulting in the acquiring party holding assets, voting securities or a controlling interest in a non-corporate entity valued at $75.9 million or more, but less than $303.4 million, is generally reportable if one party has net sales or total assets of at least $10 million, as adjusted ($15.2 million upon the effective date of these revised thresholds), and the other party has net sales or total assets of at least $100 million, as adjusted ($151.7 million upon the effective date of these revised thresholds).

Although the filing fees for HSR notifications will not change at this time (although this is something currently under review), the thresholds (based upon the size-of-transaction) that determine the correct filing fee will also adjust:

Filing Fee

Size-of-Transaction

$45,000 $75.9 million, but less than $151.7 million $125,000 $151.7 million, but less than $758.6 million $280,000 $758.6 million or more

Again, these revised thresholds will become effective 30 days after publication of notice in the Federal Register.

Barry Diller to Pay $480,000 Fine for Failure to File HSR

by Emily Townsend | Jul 2, 2013 | FTC Developments

by Carla A. R. Hine

The Federal Trade Commission (FTC) announced a settlement today with Barry Diller for failing to file a Hart-Scott-Rodino (HSR) notification in connection with his acquisition of shares of Coca-Cola over the course of 2010-2012. Diller will pay $480,000 in civil penalties.

Diller acquired Coca-Cola voting securities, and as a result of those acquisitions, held Coca-Cola shares valued in excess of the HSR thresholds, but did not file or observe the HSR waiting period. Diller made corrective filings over a year ago, which alerted the FTC to HSR Act violations. Diller had previously made a corrective filing in a separate transaction, and the FTC did not impose a penalty at that time but did note that “Mr. Diller is accountable for instituting an effective program to ensure full compliance with the [HSR] Act’s requirements.” Here, Diller only made the corrective filings after in-house counsel for Coca-Cola inquired as to whether an HSR filing was required for his most recent acquisition.

The FTC noted specifically that Diller’s acquisition did not fall within the “investment only” exemption – which generally exempts acquisitions of voting securities where the acquirer will hold less than 10 percent of the voting securities of the issuer and will remain a passive investor – because Diller intended to “participate in the formulation, determination, or direction of the basic business decisions of Coke” as a Coca-Cola board member.

This announcement follows the FTC’s June 20 announcement that MacAndrews & Forbes agreed to pay $720,000 in connection with its failure to file HSR. Like Diller’s situation, MacAndrews & Forbes also had a prior violation of the HSR Act in connection with a separate transaction. While not an official enforcement policy, the FTC appears to give first-time offenders one free pass, but will impose civil penalties where subsequent violations occur.

Institutional investors, executives and directors should take note of this case. Some institutional investors may be able to take advantage of the “investment only” exemption where their holdings remain below 10 percent and they do not take an active role in the business decisions of the company. However, the “investment only” exemption does not apply to executives or directors (like Diller) who may acquire shares on the open market or in connection with compensation packages.

HSR Rules on Automatic Withdrawal of Filings

by Emily Townsend | Jul 1, 2013 | FTC Developments

by Carla A. R. Hine

Following the publication of proposed rules back in February, the Federal Trade Commission (FTC) has issued final rules to establish procedures for the withdrawal of Hart-Scott-Rodino (HSR) filings. The rules, which do not differ from those originally proposed in February, codify the informal “pull and refile” practice parties sometime use to allow an agency an additional 30 days to review a transaction (in the hopes of staving off a Second Request).

The rules also establish a procedure for automatically withdrawing HSR filings when parties make certain filings with the Securities and Exchange Commission (SEC) announcing that a transaction has been abandoned. In the interest of not spending resources on "hypothetical" transactions, HSR filings will be automatically withdrawn when, in the case of a tender offer (TO), the tender offer has expired, terminated or has otherwise been withdrawn, resulting in a filing of an amended Schedule TO with the SEC. In the case of a non-tender offer, an HSR will be automatically withdrawn whenever an agreement between parties is terminated and results in the filing of a Form 8-K with the SEC. Any subsequent transaction between the parties, if reportable, would be subject to a new filing and new filing fee. This rule will not let parties continue the HSR process with deals that may or may not revive themselves. The automatic withdrawal mechanism will not apply to transactions involving non-publicly traded companies and certain foreign companies.

$720,000 Civil Penalty for Failure to File HSR

by Emily Townsend | Jun 21, 2013 | DOJ Developments, FTC Developments, Mergers & Acquisitions

by Carla A. R. Hine

Today the Department of Justice (DOJ), on behalf of the Federal Trade Commission (FTC), announced a settlement with MacAndrews & Forbes for failing to file Hart-Scott-Rodino (HSR) in connection with the acquisition of voting securities of Scientific Games (SG). MacAndrews & Forbes, which is a wholly-owned holding company of Ronald Perelman, will pay $720,000 for failing to file HSR.

MacAndrews & Forbes had filed HSR and observed the waiting period for a prior acquisition of SG voting securities. Under the HSR Rules, a buyer that has filed HSR and observed the waiting period can continue to acquire voting securities of an issuer valued up to the next notification threshold for a period of five years following expiration of the HSR waiting period. (The relevant notification thresholds in acquisitions of less than 50 percent of the voting securities are $50 million, $100 million and $500 million, each of which are adjusted annually.) However, if the buyer will pass the next notification threshold, or acquire additional stock after the five year period expires, a new HSR filing is required. The HSR size-of-transaction is determined by valuing what a buyer will hold as a result of the transaction. In other words, the buyer needs to look at the value of the voting securities of an issuer it currently holds aggregated with the value of the stock it will acquire. The value of publicly traded stock, such as SG’s, is determined by looking at the lowest closing quotation price in the preceding 45 calendar days. As such, if a stock goes up in value over time, even acquisitions of small tranches of shares can put an acquiring person above a notification threshold.

That is what happened in MacAndrews & Forbes’s case. It had filed HSR in February 2007 and the five year period in which it could make additional acquisitions expired when it acquired an additional 800,000 shares, valued at $6.5 million, in June 2012. This acquisition, when aggregated with the value of SG stock MacAndrews & Forbes already held, exceeded the filing threshold. MacAndrews & Forbes realized the inadvertent failure to file, and submitted a corrective filing in September 2012. The takeaways here are to remember that HSR thresholds consider both what a buyer already holds in addition to what else it will acquire, and that subsequent potential HSR obligations need to be monitored over time.

To view the press release, click here.

To view the complaint, click here.

Recent DOJ Obstruction of Justice Case Highlights Importance of HSR Item 4 Compliance

by McDermott Will & Emery | May 21, 2012 | DOJ Developments, Mergers & Acquisitions

by Jon Dubrow, Cerissa Cafasso and Carla Hine.

Failing to comply with premerger document disclosure rules can lead to civil and criminal penalties for companies and their executives.

To read the full article, click here.

The Top Five (Avoidable) Antitrust Traps in M&A Transactions

by Emily Townsend | Feb 28, 2011 | DOJ Developments, FTC Developments, Mergers & Acquisitions

by Jon B. Dubrow, Joseph F. Winterscheid and Carla A. R. Hine

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.

To read the full article, click here.

Notification Threshold Under Hart-Scott-Rodino Act Increased to $66 million

by Emily Townsend | Jan 25, 2011 | FTC Developments

by Jon B. Dubrow, Joseph F. Winterscheid and Carla A. R. Hine

The Federal Trade Commission (FTC) recently announced revised thresholds for the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR Act) and 2011 thresholds for determining whether parties trigger the prohibition against interlocking directors under Section 8 of the Clayton Act. Increased reporting thresholds apply to pre-merger notifications filed on or after February 24, 2011.

To read the full article, please visit: https://www.mwe.com/info/news/ots0111g.htm.

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