NYSE Euronext and Germany’s Deutsche Börse, two of the world’s largest stock exchange operators, announced this week that they are in “advanced discussions” regarding a possible merger which would create the largest stock exchange in the world. According to Reuters, the board of NYSE Euronext is expected to meet this weekend to discuss the planned takeover.

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The Federal Trade Commission announced its annual increase in the threshold for reporting mergers and acquisitions under the Hart-Scott-Rodino Antitrust Improvements Act. Among other changes, the threshold related to transaction value is increasing from $63.4 million to $66.0 million. This increase will be effective for transactions closing on or after February 24, 2011. The FTC also announced increases to the thresholds that trigger a prohibition preventing companies from having interlocking directorships under Section 8 of the Clayton Act. The new thresholds are $26,867,000 (minimum capital, surplus and undivided profits) and $2,686,700 (minimum amount of competitive sales). These increases took effect on January 25, 2011.  For more detail, see the Client Advisory prepared by Alston & Bird.

The U.S. Department of Justice and the Federal Trade Commission today released the final version of their revised Horizontal Merger Guidelines.  The FTC press release includes a link to the new Guidelines and statements about the revisions by two commissioners.  In addition, a recent A&B advisory provided more detailed information about the proposed changes. 

The Federal Trade Commission announced last Friday proposed changes to the form of premerger notification that must be filed under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and related rules and instructions. According to the FTC’s press release, the changes are “designed to streamline the form and focus on the information most needed by the [FTC and DOJ] in their initial merger review.” The FTC also believes the changes will make the notification process more efficient and the form easier to complete.

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The FTC and the DOJ continue to pursue aggressive antitrust reviews of, and challenges to, transactions that have already closed and were too small to require Hart-Scott-Rodino Act filings. Recent examples include Ovation Pharmaceutical's purchase of assets from Abbott Laboratories, and Dean Foods' acquisition of a division of Foremost Farms. The National Law Journal recently published an article on this trend, which has previously been discussed on this blog in connection with a number of merger challenges. The NLJ article can be found here.

On May 24, 2010, the United States Supreme Court handed down the first ruling for an antitrust plaintiff in years, and reiterated that the activities of independent parties, even when closely coordinated as part of a joint venture, are not presumptively immune from antitrust liability. Specifically, the Court held in American Needle, Inc. v. National Football League that the National Football League, its teams and National Football League Properties, which the teams formed to coordinate the joint licensing of their intellectual property, could not shield themselves from scrutiny under Section 1 of the Sherman Act.  The Court rejected the NFL entities' claim that they operated only as a single enterprice and, thus, were incapable of having the multiple independent actors required for liability under that statute. 

Alston & Bird has prepared an advisory providing an analysis of the ruling and its impact for joint venture partners.

For the first time in more than a decade, the federal antitrust enforcement agencies have proposed modifications to their guidelines for determining when and how mergers among competitors should be challenged as being anticompetitive. The agencies explained the revisions as codifications of the "flexible" and fact-specific approach to merger analysis they have used in recent years rather than a major analytical shift, but it remains to be seen whether the changes are also the foundation for more aggressive merger enforcement.

Alston & Bird has prepared an advisory describing the proposed modifications.

On March 8, 2010, the U.S. Justice Department announced that it will require Electronic Systems & Software, Inc. to divest certain assets it acquired last year when it purchased Premier Election Solutions, Inc., a subsidiary of Diebold, Inc. The transaction closed in September 2009, but with a value of only $5 million, it was well below the minimum filing threshold of the Hart-Scott-Rodino Antitrust Improvements Act. Consequently, the parties were not required to seek advance clearance.

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This advisory discusses the FTC’s three-percent reduction in the jurisdictional thresholds for pre-merger notification filings under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (“HSR Act”) and for interlocking directorate calculations under Section 8 of the Clayton Act. Since 2005, the HSR Act thresholds have been indexed annually by the FTC to reflect changes in U.S. gross national product. This is the first year since annual indexing was implemented that the thresholds were reduced from the previous year’s thresholds.

The advisory is provided in PDF on the Alston & Bird web site: http://www.alston.com/MA_advisory_FTC_HSR_filings

The Department of Justice has announced a settlement with Smithfield Foods, Inc. and Premium Standard Farms LLC relating to the companies’ alleged violations of the so-called “gun-jumping” prohibitions of the Hart-Scott-Rodino Antitrust Improvements Act of 1976. Smithfield and Premium have agreed to pay a civil penalty of $900,000.

Smithfield and Premium entered into a merger agreement in September 2006, under which Smithfield acquired Premium in a deal valued at about $810 million. According to the complaint filed by the DOJ, Premium stopped exercising its independent business judgment with respect to hog procurement prior to expiration of the premerger waiting period required by HSR. In this instance, the DOJ had made a request for additional information, or “second request,” regarding the transaction and, as a result, the waiting period did not expire until May 7, 2007.

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In recent action, the FTC sent a wake-up call to corporate America regarding mergers or acquisitions that fall below the HSR Act's $56.7 million threshold for reporting prior to consummation. On July 5, 2006, the FTC challenged the Hologic Inc. purchase of Fischer Imaging Corporation's mammography and breast biopsy business as leaving Hologic with "a virtual monopoly of the U.S. prone SBBS market." The FTC has also challenged transactions post-consummation although previously approved by antitrust agencies. This Advisory discusses these recent actions.

The advisory is provided in PDF on the Alston & Bird Web site: http://www.alston.com/files/Publication/c3468ad9-e821-410c-8a5c-8766f8981db8/Presentation/PublicationAttachment/2fd77acb-d190-46c2-9fdf-e41f4fe0da98/Hologic%20Client%20Advisory.pdf