The Merger Wave: Trends in Merger Enforcement and Litigation

Business Lawyer

Volumn 55, Issue 1, 1999, Pages 351-404

  Parker, Richard G ^a   Balto, David A ^a  

^a NONE

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EID: 0033272944     PISSN: 00076899     EISSN: None     Source Type: Journal    
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References (244)

1. See Economic Report of the President 39 (1999), available in 〈http://www.gpo.ucop. edu/catalog/erp99.html〉.
2. See 98 Could be $2 Trillion Year for Mergers, WASH. POST, June 3, 1998, at C15.
3. Wave of Mergers is Recasting Pace of Business in U.S., N.Y. TIMES, Jan. 19, 1998, at A1 [hereinafter Wave of Mergers]; see Greenspan Questions Antitrust Efforts, WALL ST. J., June 17, 1998, at A2. There have actually been five great merger waves in U.S. history. See Testimony of Dr. Janet L. Yellen, Chair, Council of Economic Advisers, Before the Senate Judiciary Committee (June 16, 1998), available in 〈http://www.senate.gov/~judiciary/yellen.htm〉.
4. Wave of Mergers is Recasting Pace of Business in U.S., N.Y. TIMES, Jan. 19, 1998, at A1 [hereinafter Wave of Mergers]; see Greenspan Questions Antitrust Efforts, WALL ST. J., June 17, 1998, at A2. There have actually been five great merger waves in U.S. history. See Testimony of Dr. Janet L. Yellen, Chair, Council of Economic Advisers, Before the Senate Judiciary Committee (June 16, 1998), available in 〈http://www.senate.gov/~judiciary/yellen.htm〉.
5. Wave of Mergers is Recasting Pace of Business in U.S., N.Y. TIMES, Jan. 19, 1998, at A1 [hereinafter Wave of Mergers]; see Greenspan Questions Antitrust Efforts, WALL ST. J., June 17, 1998, at A2. There have actually been five great merger waves in U.S. history. See Testimony of Dr. Janet L. Yellen, Chair, Council of Economic Advisers, Before the Senate Judiciary Committee (June 16, 1998), available in 〈http://www.senate.gov/~judiciary/yellen.htm〉.
6. See Merger Wave Spurs a New Scrutiny, N.Y. TIMES, Dec. 13, 1998, § 1 (Magazine), at 38 (describing trends in merger litigation).
7. 12 F. Supp. 2d 34 (D.D.C. 1998). Cardinal Health and McKesson were joint actions by the FTC to enjoin two related, but separate, mergers of prescription drug wholesalers.
8. See id.
9. 17 F. Supp. 2d 937 (E.D. Mo. 1997), rev'd, No. 98-3123, 1999 WL 512108 (8th Cir. July 21, 1999), reh'g denied (8th Cir. Oct. 6, 1999).
10. No. CIV. A. 93 Civ. 3913, 1994 WL 196800 (S.D.N.Y. Apr. 4, 1994).
11. Civ. No. 1:98CV00731 (D.D.C. Mar. 23, 1998).
12. See Statement of Robert Pitofsky, FTC Chairman, Before the Senate Judiciary Committee Concerning Mergers and Corporate Consolidation in the New Economy (June 16, 1998), available in 〈http://www.ftc/gov/os/1998/9806/merger98.tes.htm〉.
13. See Pub. L. No. 94-435, 90 Stat. 1383 (1976) (codified as amended in scattered sections of 15 U.S.C.).
14. Challenging a merger can result in a preliminary injunction hearing in a federal district court, a consent order that fixes the anticopetitive part of the merger while allowing the rest of the transaction to proceed, or abandonment of the merger by the parties.
15. See Merger Wave Gathers Force as Strategies Demand Buying or Being Bought, WALL ST. J., Feb. 26, 1997, at A1 [hereinafter Merger Wave Gathers Force].
16. See Wave of Mergers, supra note 3. The increasingly global nature of competition is discussed at length in an FTC Staff Report. See FTC, Anticipating the 21st Century: Competition Policy in the New High-Tech, Global Marketplace (May 1996), available in 〈http:// www.ftc.gov/opp/global.htm〉.
17. See Wave of Mergers, supra note 3. The increasingly global nature of competition is discussed at length in an FTC Staff Report. See FTC, Anticipating the 21st Century: Competition Policy in the New High-Tech, Global Marketplace (May 1996), available in 〈http:// www.ftc.gov/opp/global.htm〉.
18. See, e.g., CMS Energy Corp., 64 Fed. Reg. 14,725 (Mar. 26, 1999) (analysis to aid public comment); In re Arkla, Inc., 112 F.T.C. 509 (1989) (consent order); In re Occidental Petroleum Corp., 109 F.T.C. 167 (1986) (consent order); In re Midcon Corp., 107 F.T.C. 48 (1986) (consent order). See also Paul M. Sherer & Steven Lipin, NiSource is Expected to Disclose Bid of $5.7 Billion for Columbia Energy, WALL ST. J., June 7, 1999, at A3.
19. See Prepared Statement of Robert Pitofsky, FTC Chairman, Before the U.S. Senate Armed Services Committee, Subcommittee on Acquisition and Technology (Apr. 15, 1997), available in 〈http://www.ftc.gov/os/1997/9704/defenmer.htm〉.
20. See David A. Balto & James Mongoren, Antitrust Enforcement in Pharmaceutical Industry Mergers, 54 FOOD & DRUG L. J. 255 (1999).
21. See Merger Wave Gathers Force, supra note 13 (describing strategic motivations of many recent mergers); Wave of Mergers, supra note 3 ("Companies have decided to go for size. They've made a decision to go for big scale or fall back and be a niche player. There is no middle ground." (quoting Richard L. Huber, President of Aetna)).
22. See Merger Wave Gathers Force, supra note 13 (describing strategic motivations of many recent mergers); Wave of Mergers, supra note 3 ("Companies have decided to go for size. They've made a decision to go for big scale or fall back and be a niche player. There is no middle ground." (quoting Richard L. Huber, President of Aetna)).
23. See Buoyant Stock Market Keeps Mergers in Pipeline, N.Y. TIMES, Jan. 5, 1998, at D3 (noting ferocious pace of mergers driven by high stock valuations, continued struggle for revenue growth, pressures on expenses, and demands of institutional investors); Merger Wave Gathers Force, supra note 13; Public Backlash Against Big Mergers Isn't Likely Yet, WALL ST. J., Apr. 14, 1998, at A24.
24. See Buoyant Stock Market Keeps Mergers in Pipeline, N.Y. TIMES, Jan. 5, 1998, at D3 (noting ferocious pace of mergers driven by high stock valuations, continued struggle for revenue growth, pressures on expenses, and demands of institutional investors); Merger Wave Gathers Force, supra note 13; Public Backlash Against Big Mergers Isn't Likely Yet, WALL ST. J., Apr. 14, 1998, at A24.
25. See Buoyant Stock Market Keeps Mergers in Pipeline, N.Y. TIMES, Jan. 5, 1998, at D3 (noting ferocious pace of mergers driven by high stock valuations, continued struggle for revenue growth, pressures on expenses, and demands of institutional investors); Merger Wave Gathers Force, supra note 13; Public Backlash Against Big Mergers Isn't Likely Yet, WALL ST. J., Apr. 14, 1998, at A24.
26. See FTC v. Tenet Healthcare Corp., 17 F. Supp. 2d 937 (E.D. Mo. 1997), rev'd, No. 98-3123, 1999 WL 512108 (8th Cir. July 21, 1999), reh'g denied (8th Cir. Oct. 6, 1999).
27. See FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34 (D.D.C. 1998).
28. DOJ, Merger Guidelines - 1992 (with April 8, 1997, revisions to Sec. 4 on Efficiencies), 4 Trade Reg. Rep. (CCH) ¶ 13,104, at 20,569-74 (Apr. 7, 1997) [hereinafter Merger Guidelines].
29. Tenet Healthcare, 17 F. Supp. 2d at 937.
30. See Cardinal Health, Inc., 12 F. Supp. 2d at 66.
31. See id.
32. See id.
33. See id.
34. United States v. Archer-Daniels-Midland Co., 866 F.2d 242, 244-45 (8th Cir. 1988).
35. Times-Picayune Publ'g Co. v. United States, 345 U.S. 594, 612 n.31 (1953); see United States v. Aluminum Co. of Am., 377 U.S. 271, 275 (1964) (overturning district court decision by dividing broad market into smaller submarkets for analysis); United States v. Gillette Co., 828 F. Supp. 78, 81 (D.D.C. 1993) (defining fountain pen market narrowly to include only specific price levels).
36. Brown Shoe Co. v. United States, 370 U.S. 294, 325 (1962); see Rothery Storage & Van Co. v. Atlas Van Lines, 792 F.2d 210, 218 (D.C. Cir. 1986) (explaining Brown Shoe's use of submarket analysis).
37. Merger Guidelines, supra note 22, at 20,573-3.
38. Id.
39. See U.S. Anchor Mfg. v. Rule Indus., Inc., 7 F.3d 986, 997 n.21 (11th Cir. 1993).
40. See FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34, 40 (D.D.C. 1998) (stating that of the $94 billion in prescription drugs dispensed in 1997, $55 billion (58.5 %) was distributed by wholesalers).
41. See, e.g., Brown Shoe, 370 U.S. at 324 (establishing market analysis relied upon in Cardinal Health).
42. The defendants attempted to broaden the market by including the chain pharmacies' self-warehousing as "captive production." Cardinal Health, 12 F. Supp. 2d at 45-46. The defendants claimed that the Merger Guidelines require inclusion of captive production whether or not customers would increase captive production in response to a price increase. The court's decision did not accept that argument. Id. at 46. As the Merger Guidelines state, captive production should only be included in the relevant product market "to the extent that 'such inclusion reflects [its] competitive significance in the relevant market prior to the merger.'" Id. at 48 (quoting Merger Guidelines, supra note 22, at 20,573-3). The well-reasoned decisions included captive production only when it was an adequate substitute to meet market demand. See, e.g., In re British Oxygen Co., 86 F.T.C. 1241, 1316 (1975) (excluding captive production from industrial gas market because it was and would be unavailable to meet market demand); see also, e.g., Grumman Corp. v. LTV Corp., 665 F.2d 10, 13-14 (2d Cir. 1981) (finding that "economic reality" requires excluding captive production where in-house capacity was an inadequate substitute).
43. Cardinal Health, Inc., 12 F. Supp. 2d at 60-61.
44. Id. at 66.
45. See United States v. Baker Hughes Inc., 908 F.2d 981, 987 (D.C. Cir. 1990) ("In the absence of significant [entry] barriers a company probably cannot maintain supracompetitive pricing for any length of time."); United States v. Gillette Co., 828 F. Supp. 78, 84 (D.D.C. 1993) (holding that a merger would not be enjoined where there were not technological, legal, or regulatory barriers to entry).
46. See FTC v. Procter & Gamble Co., 386 U.S. 568, 579 (1966) (citing example of entry-barrier effects on price elasticity in bleach market); California v. American Stores, 697 F. Supp. 1125, 1131 (C.D. Cal. 1988) (explaining correlation between entry barriers and price elasticity).
47. FTC v. Staples, 970 F. Supp. 1066, 1086 (D.D.C. 1996) (quoting United States v. Baker Hughes, Inc., 908 F.2d 981, 989 (D.C. Cir. 1990)).
48. Merger Guidelines, supra note 22, at 20,573-10.
49. Cardinal Health, Inc., 12 F. Supp. 2d at 55-56.
50. Id. at 56-57.
51. Id. at 57-58.
52. Id. at 66-67.
53. Id.
54. FTC v. Staples, 970 F. Supp. 1066 (D.D.C. 1996).
55. 908 F.2d 981 (D.C. Cir. 1990).
56. See Cardinal Health Inc., 12 F. Supp. 2d at 58-66.
57. See, e.g., Malcolm Coate, Economics, the Guidelines and the Evolution of Merger Policy, 37 ANTITRUST BULL. 997, 1017 (1993) ("Overall, the evidence suggests that a lack of barriers, standing alone, may be fatal to a case.").
58. Baker Hughes, 908 F.2d at 986-87; see United States v. Country Lake Foods, Inc., 754 F. Supp. 669, 679 (D. Minn. 1990); FTC v. R.R. Donnelley & Sons Co., 1990-2 Trade Cas. (CCH) ¶ 69,239 (D.D.C. 1990) (mem. order) ("Well established precedent and the United States Department of Justice Merger guidelines recognize that the sophistication and bargaining power of buyers play a significant role in assessing the effects of a proposed transaction.").
59. 781 F. Supp. 1400 (S.D. Iowa 1991).
60. Id. at 14-16 (relying on "[ejmpirical studies [that] have shown that the stronger and more concentrated the buyers' side of the market is, the less is any ability of sellers to elevate their prices").
61. Indeed, in other cases courts have recognized that a merger may properly be enjoined even if the product has only one customer. See, e.g., FTC v. PPG Indus., Inc., 798 F.2d 1500 (D.C. Cir. 1986); Grumman Corp. v. LTV Corp., 665 F.2d 10 (2d Cir. 1981); FTC v. Alliant Techsystems, 808 F. Supp. 19 (D.D.C. 1992); FTC v. Imo Indus., 1992 Trade Cas. (CCH) ¶ 69,943 (D.D.C. 1989) (mem).
62. 768 F. Supp. 1064 (D. Del. 1991).
63. Id. at 1085.
64. See Eastman Kodak Co. v. Image Tech. Servs., 504 U.S. 451, 475-76 (1992) (doubting Kodak's reasoning that sophisticated purchasers ensure competitive prices for all purchasers in copier parts market).
65. HERBERT HOVENKAMP, FEDERAL ANTITRUST POLICY § 12.5a, at 482 (1994).
66. FTC v. Cardinal Health Inc., 12 F. Supp. 2d 34, 60 (D.D.C. 1998).
67. Id. at 63.
68. For instance, in FTC v. Procter & Gamble Co., 386 U.S. 568, 580 (1967), the court found "[p]ossible economies cannot be used as a defense to illegality . . ." in a section 7 merger case. See also United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 371 (1963); Brown Shoe Co. v. United States, 370 U.S. 294, 344 (1962). Some courts have held that efficiencies are irrelevant to section 7 analysis. As Judge Gesell wrote: Any federal judge considering regulatory aims such as those laid down by Congress in section 7 of the Clayton Act should hesitate before grafting onto the Act an untried economic theory such as the wealth-maximization and efficiency-though-acquisition doctrine expounded by [defendants] . . . . To be sure, efficiencies that benefit consumers were recognized [by Congress] as desirable but they were to be developed by dominant concerns using their brains, not their money by buying out troubling competitors. The Court has no authority to move in a direction neither the Congress nor the Supreme Court has accepted. FTC v. Coca-Cola Co., 641 F. Supp. 1128, 1141 (D.D.C. 1986); see FTC v. Alliant Techsystems, Inc., 808 F. Supp. 9, 23 (D.D.C. 1992).
69. See FTC v. University Health, Inc., 938 F.2d 1206, 1222 (11th Cir. 1991); United States v. Rockford Mem'l Corp., 717 F. Supp. 1251, 1288 (N.D. Ill. 1989), aff'd, 898 F.2d 1278 (7th Cir. 1990).
70. Merger Guidelines, supra note 22, at 20,573-11 to -13. For an overview of the Guidelines project and recent court decisions on efficiencies, see Robert Pitofsky, Efficiencies in Defense of Mergers, 7 GEO. MASON L. REV. 485, 486-87 (1999).
71. Merger Guidelines, supra note 22, at 20,573-11 to -13. For an overview of the Guidelines project and recent court decisions on efficiencies, see Robert Pitofsky, Efficiencies in Defense of Mergers, 7 GEO. MASON L. REV. 485, 486-87 (1999).
72. Pitofsky, supra note 64.
73. See Merger Guidelines, supra note 22, at 20,573-13.
74. Id.
75. See id.
76. See id.
77. Indeed, some studies show that firms often fail to accomplish the projected cost savings from a merger. See generally Joseph Brodley, Proof of Efficiencies in Mergers and Joint Ventures, 64 ANTITRUST L.J. 576 (1996).
78. United States v. Rockford Mem'l Corp., 717 F. Supp. 1251, 1289 (N.D. Ill. 1989), aff'd, 898 F.2d 1278 (7th Cir. 1990); see FTC v. University Health, Inc., 938 F.2d 1206, 1222-23 (11th Cir. 1991).
79. University Health, 938 F.2d at 1223; see United States v. Mercy Health Servs., 902 F. Supp. 968, 987-88 (N.D. Iowa 1995), vacated, 107 F.3d 632 (8th Cir. 1997).
80. Mercy Health Servs., 902 F. Supp. at 987 n.4; see United States v. Ivaco, 704 F. Supp. 1409, 1425 (D. Mich. 1989); Rockford Mem'l Corp., 717 F. Supp. at 1289.
81. See United States v. Philadelphia Nat'l Bank, 374 U.S. 321, 370-71 (1963); Ivaco, 704 F. Supp. at 1425-27; Rockford Mem'l Corp., 717 F. Supp. at 1289.
82. See United States v. United Tote, 768 F. Supp. 1064, 1084-85 (D.D.C. 1991) (rejecting efficiencies argument because "there are no guarantees that these savings will be passed on to the consuming public"); California v. American Stores, 697 F. Supp. 1125, 1133 (C.D. Cal. 1988) (rejecting claim of over $50 million in efficiencies since savings will not "invariably" be passed on to consumers).
83. See University Health, 938 F.2d at 1222-23 (finding "significant economies and that these economies ultimately would benefit competition, and hence, consumers"); United Tote, 768 F. Supp. at 1064; Ivaco, 704 F. Supp. at 1409 .
84. FTC v. PPG Indus. Inc., 628 F. Supp. 881, 885 (D.D.C.), aff'd in part, 798 F.2d 1500 (D.C. Cir. 1986).
85. University Health, 938 F.2d at 1223; see Rockford Mem'l Corp., 717 F. Supp. at 1289.
86. See FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34, 60-68 (D.D.C. 1998).
87. Id. at 62-63.
88. Id. at 63.
89. Id.
90. See id. at 66-68.
91. Id. at 64.
92. N.C.A.A. v. Board of Regents, 468 U.S. 85, 104 n.27 (1984).
93. 273 U.S. 392 (1927).
94. Id. at 397.
95. See, e.g., Arizona v. Maricopa County Med. Soc'y, 457 U.S. 332, 342-351 (1982); Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc. 340 U.S. 211 (1951).
96. National Soc'y of Prof'l Eng'rs v. United States, 435 U.S. 679, 695 (1978).
97. See FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34, 64 (D.D.C. 1998).
98. See id. at 64-65.
99. See id.
100. See id. at 39-43.
101. Id. at 66.
102. See e.g., Michael Malina, Some Thoughts on the Source of Antitrust Law in the Nineties, 63 ANTITRUST L.J. 853, 854 (1995) ("[W]ith respect to the antitrust treatment of mergers and acquisitions, the most influential source of law is not the definitive decisions of the Supreme Court . . . but rather the Guidelines drafted and promulgated by lawyers and economists at the Department of Justice and the Federal Trade Commission.").
103. FTC v. Staples, Inc., 970 F. Supp. 1066 (D.D.C. 1997).
104. See Pepsico, Inc. v. Coca-Cola Co., No. 98 Civ. 3282, 1998 U.S. Dist. LEXIS 13440, at *21 (S.D.N.Y. Aug. 27, 1998) (relying on the Staples and Cardinal decisions, finding that a channel of distribution can define a market, notwithstanding the fact the products may be available from other sources to hold that Pepsi's alleged relevant market of "sales of fountain-dispensed soft drinks distributed through independent food service distributors" was sufficient to survive a 12(b)(6) motion).
105. FTC v. Tenet Healthcare Corp., 17 F. Supp. 2d 937 (E.D. Mo. 1998), rev'd, No. 98-3123, 1999 WL 512108 (8th Cir. July 21, 1999), reh'g denied (8th Cir. Oct. 6, 1999).
106. Id. at 948-49; see Tenet Healthcare Corp., 1999 WL 512108.
107. 15 U.S.C. § 18 (1994). Section 7 of the Clayton Act prohibits mergers and acquisitions that "may . . . substantially . . . lessen competition, or tend to create a monopoly."
108. 394 U.S. 131 (1969).
109. Id. at 137-38 (citations omitted).
110. See Merger Guidelines, supra note 22, at 20,574.
111. Tenet Healthcare Corp., 17 F. Supp. 2d at 944.
112. See Kaiser Aluminum & Chem. Corp. v. FTC, 652 F.2d 1324, 1338 (7th Cir. 1981) ("Financial weakness, while perhaps relevant in some cases, is probably the weakest ground of all for justifying a merger."); see also FTC v. University Health, Inc., 938 F.2d 1206, 1221 (11th Cir. 1991) (determining a firm's financial weakness is pertinent only in the "rare case" in which "the defendant makes a substantial showing that the acquired firm's weakness, which cannot be resolved by any competitive means, would cause that firm's market share to reduce to a level that would undermine the government's prima facie case"); FTC v. Warner Communications, Inc., 742 F.2d 1156, 1164 (9th Cir. 1984) (finding "a 'weak company' defense would expand the failing company doctrine, a defense which has strict limits"); United States v. Ivaco, Inc., 704 E Supp. 1409, 1425 (WD. Mich. 1989) (holding evidence of a firm losing money and proof that a shrinking market predestined future exit was "insufficient to demonstrate that the firms' past performance [was] an unreliable indicator of their future ability to compete" where "both firms, as a whole remain profitable businesses" and neither firm had plans of exiting the business).
113. Tenet Healthcare, 17 E Supp. 2d at 947-48.
114. Id.
115. Id. at 947.
116. Id. at 947-48.
117. Id. at 948.
118. Id.
119. Id.
120. Merger Guidelines, supra note 22, at 20,573-13.
121. See Carl Shapiro, Mergers with Differentiated Products, ANTITRUST, Spring 1996, at 23; Roscoe B. Starek III & Stephen Stockum, What Makes Mergers Anticompetitive?: "Unilateral Effects" Analysis Under the 1992 Merger Guidelines, 63 ANTITRUST L.J. 801, 803-04 (1995).
122. See Carl Shapiro, Mergers with Differentiated Products, ANTITRUST, Spring 1996, at 23; Roscoe B. Starek III & Stephen Stockum, What Makes Mergers Anticompetitive?: "Unilateral Effects" Analysis Under the 1992 Merger Guidelines, 63 ANTITRUST L.J. 801, 803-04 (1995).
123. See PHILLIP AREEDA ET AL., IIA ANTITRUST LAW ¶ 563a, at 267 (rev. ed. 1995) ("Products are differentiated when many buyers regard them as different even though the products perform the same essential function.").
124. Id. ¶ 901a, at 489 (1997 Supp.).
125. See Merger Guidelines, supra note 22, at 20,573-7.
126. FTC v. PPG Indus., Inc., 628 F. Supp. 881, 885 n.9 (D.D.C. 1986), aff'd in part, 798 F.2d 1500 (D.G. Cir. 1986).
127. Brooke Group v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 229-30 (1993).
128. See FTC v. Elders Grain, Inc., 868 F.2d 901, 906 (7th Cir. 1989) (involving reduction from six to five competitors); Hospital Corp. of Am. v. FTC, 807 F.2d 1381, 1387 (7th Cir. 1986) (involving reduction from eleven to seven competitors).
129. Elders Grain, Inc., 868 F.2d at 905; see FTC v. Warner Communications, 742 F.2d 1156, 1162-63 (9th Cir. 1984); In re The Grand Union Co., 102 F.T.C. 812, 1063-64 (1983); see also United States Steel Corp. v. FTC, 426 F.2d 592, 604 (6th Cir. 1970).
130. See United States v. Waste Management, Inc., 743 F.2d 976, 982-83 (2d Cir. 1984).
131. United States Steel Corp., 426 F.2d at 604; see Fruehauf Corp. v. FTC, 603 F.2d 345, 357 (2d Cir. 1979) (explaining high entry barriers may be a signal that a particular merger carries potential for impairing competition).
132. United States v. Aluminum Co. of Am., 377 U.S. 271, 280 (1964); see In re Beatrice Foods Co., 101 F.T.C. 797, 822 (1985) (stating "unique small competitor - with a clear capacity to destabilize the market - as measured by such qualities as . . . boldness in price competition."); In re Heublein, Inc., 96 F.T.C. 574 (1980) (same).
133. Merger Guidelines, supra note 22, at 20,573-8.
134. Hospital Corp. of Am. v. FTC, 807 F.2d 1381, 1388 (7th Cir. 1989); FTC v. Bass Bros. Enters., Inc., 1984-1 Trade Cas. (CCH) ¶ 66,041, at 68,621 (N.D. Ohio June 6, 1984); Merger Guidelines, supra note 22, at 20,573-7.
135. Merger Guidelines, supra note 22, at 20,573-7.
136. Hospital Corp., 807 F.2d at 1388.
137. 15 U.S.C. § 18 (1994).
138. California v. American Stores Co., 495 U.S. 271, 284 (1990).
139. Brown Shoe Co. v. United States, 370 U.S. 294, 323 (1962).
140. American Stores Co., 495 U.S. at 284 (quoting Clayton Act § 7); see 15 U.S.C. § 18 (1994 & Supp. III 1997).
141. See FTC v. Cardinal Health, Inc., 12 F. Supp. 2d 34 (D.D.C. 1998).
142. See Shell Oil Co. & Texaco Inc., 5 Trade Reg. Rep. (CCH) ¶ 24,362, at 24,189 (FTC Apr. 21, 1998) (consent order and complaint).
143. See Degussa Aktiengesellschaft & Degussa Corp., 5 Trade Reg. Rep. (CCH) ¶ 24,406, at 24,258 (FTC June 10, 1998) (consent order and complaint).
144. See Exxon Corp., The Shell Petroleum Co. Ltd, & Shell Oil Co., 5 Trade Reg. Rep. (CCH) ¶ 24,489, at 24,334 (FTC Oct. 30, 1998) (consent order and complaint). The discussion here deals solely with FTC enforcement actions. The DOJ has also challenged mergers based on coordinated interaction theory. In In re Cargill, Inc., 62 Fed. Reg. 26,559 (DOJ 1997) (proposed final judgement and competitive impact statement), the DOJ relied on a coordinated effects theory in challenging Cargill's proposed acquisition of Akzo Nobel's western hemisphere salt operations. The DOJ alleged that the combination likely would lead to an increase in prices because "the remaining competitors [will be able] to engage more easily, frequently, and effectively in coordinating pricing interaction that harms customers." Id. at 26,567.
145. See Cardinal Health, 12 F. Supp. 2d at 65-66.
146. See id.
147. See id. at 66.
148. See Shell Oil Co. & Texaco Inc., 5 Trade Reg. Rep. (CCH) ¶ 24,362, at 24,189 (FTC Apr. 21,1998) (consent order and complaint) .
149. HHI is the Herfindahl-Hirschman Index of maket concentration, used by the FTC and the DOJ ¶[a]s an aid to the interpretation of market data.¶ Merger Guidelines, supra note 22, at 20,573-5.
150. See Degussa Aktiengesellschaft & Degussa Corp., 5 Trade Reg. Rep. (CCH) ¶ 24,406, at 24,258 (FTC June 10, 1998) (consent order and complaint).
151. See id. at 24,258-59.
152. See Exxon Corp., The Shell Petroleum Co. Ltd., & Shell Oil Co., 5 Trade Reg. Rep. (CCH) ¶ 24, 489, at 24, 334 (FTC Oct. 30, 1998) (consent order and complaint).
153. Id. at 24,335.
154. Earlier, the FTC issued a complaint alleging that DuPont engaged in an anticompetitive preemptive investment strategy in the titanium dioxide industry. The FTG dismissed the complaint in 1980. The opinion stated that . . . the essence of the competitive process is to induce firms to become more efficient and to pass the benefits of the efficiency along to consumers. That Process would be ill-served by using antitrust to block hard aggressive competition that is solidly based on efficiencies and growth opportunities, even if monopoly is a possible result. In re E.I. du Pont de Nemours & Company, 96 ETC. 653, 750-51 (1980); see Peter Fairley & Robert Westervelt, Trust Busters: FTC Weighs the Mega-Mergers, CHEMICAL WEEK, Feb. 24, 1999, at 20.
155. For example, coordination has occurred in differentiated products markets such as breakfast cereals and cigarettes. See Note, Analyzing Differentiated-Product Mergers: The Relevance of Structural Analysis, 111 HARV. L. REV. 2420, 2428 (1998).
156. Section 2.11 of the Merger Guidelines provides that the [t]erms of coordination need not perfectly achieve the monopoly outcome in order to be harmful to consumers. Instead, the terms of coordination may be imperfect and incomplete - inasmuch as they omit some participants, omit some dimensions of competition, omit some customers, yield elevated prices short of monopoly levels, or lapse into episodic price wars - and still result in significant competitive harm. Merger Guidelines, supra note 22, at 20-573-7. For example, many courts have found a likelihood of collusion even where there was an absence of evidence that the firms had the requisite information or incentives. See FTC v. Elders Grain, Inc., 868 F.2d 901, 905 (7th Cir. 1989); Hospital Corp. of Am. v. FTC, 807 F.2d 1381, 1390-91 (7th Cir. 1986); United States v. Ivaco, Inc., 704 F. Supp. 1409, 1428 (D. Mich. 1989); In re The Coca Cola Bottling Co., [1993-1997 Transfer Binder] Trade Reg. Rep. (CCH) ¶ 23,681, at 23,339-40, 23,345 (FTC Aug. 31, 1994) (finding differing incentives not dispositive and explaining why neither lack of information nor differing incentives were dispositive); In re The Coca-Cola Co., [1993- 1997 Transfer Binder] Trade Reg. Rep. (CCH) ¶ 23,625, at 23,339-40 (FTC June 13, 1994); Occidental Petroleum Corp., [1993-1997 Transfer Binder] Trade Reg. Rep. (CCH) ¶ 23,370, at 23,067-68 (FTC Dec. 22, 1992). In the few cases in which these factors were found absent, there were other factors such as product heterogeneity that supported the decision. See United States v. Archer-Daniels-Midland Co., 781 F. Supp. 1400, 1419 (S.D. Iowa 1991) (involving transaction prices maintained in confidence); In re B.F. Goodrich Co., 110 F.T.C. 207, 338- 39 (1988) (differing incentive structure based on differences in levels of vertical integration and cost structure).
157. Section 2.11 of the Merger Guidelines provides that the [t]erms of coordination need not perfectly achieve the monopoly outcome in order to be harmful to consumers. Instead, the terms of coordination may be imperfect and incomplete - inasmuch as they omit some participants, omit some dimensions of competition, omit some customers, yield elevated prices short of monopoly levels, or lapse into episodic price wars - and still result in significant competitive harm. Merger Guidelines, supra note 22, at 20-573-7. For example, many courts have found a likelihood of collusion even where there was an absence of evidence that the firms had the requisite information or incentives. See FTC v. Elders Grain, Inc., 868 F.2d 901, 905 (7th Cir. 1989); Hospital Corp. of Am. v. FTC, 807 F.2d 1381, 1390-91 (7th Cir. 1986); United States v. Ivaco, Inc., 704 F. Supp. 1409, 1428 (D. Mich. 1989); In re The Coca Cola Bottling Co., [1993-1997 Transfer Binder] Trade Reg. Rep. (CCH) ¶ 23,681, at 23,339-40, 23,345 (FTC Aug. 31, 1994) (finding differing incentives not dispositive and explaining why neither lack of information nor differing incentives were dispositive); In re The Coca-Cola Co., [1993-1997 Transfer Binder] Trade Reg. Rep. (CCH) ¶ 23,625, at 23,339-40 (FTC June 13, 1994); Occidental Petroleum Corp., [1993-1997 Transfer Binder] Trade Reg. Rep. (CCH) ¶ 23,370, at 23,067-68 (FTC Dec. 22, 1992). In the few cases in which these factors were found absent, there were other factors such as product heterogeneity that supported the decision. See United States v. Archer-Daniels-Midland Co., 781 F. Supp. 1400, 1419 (S.D. Iowa 1991) (involving transaction prices maintained in confidence); In re B.F. Goodrich Co., 110 F.T.C. 207, 338-39 (1988) (differing incentive structure based on differences in levels of vertical integration and cost structure).
158. See IV PHILLIP AREEDA & DONALD F. TURNER, ANTITRUST LAW ¶ 919a, at 529-30 (1978); DENNIS W. CARLTON & JEFFREY M. PERLOFF, MODERN INDUSTRIAL ORGANIZATION 173-74 (1990).
159. See IV PHILLIP AREEDA & DONALD F. TURNER, ANTITRUST LAW ¶ 919a, at 529- 30 (1978); DENNIS W. CARLTON & JEFFREY M. PERLOFF, MODERN INDUSTRIAL ORGANIZATION 173-74 (1990).
160. 104 F.T.C. 852, 916 (1984).
161. See, e.g., PHILIP E. AREEDA AND HERBERT HOVENKAMP, ANTITRUST LAW ¶ 1121e, at 821 (1996 Supp.).
162. To the extent a "clear proof standard relies on subjective evidence, see B.A.T., 104 F.T.C. at 927-28, agency or court decisions may be based on evidence that is unreliable, because company statements may be motivated by a desire to influence agency review or merger litigation. See V AREEDA & TURNER, supra note 149, ¶ 1121b, at 819 ("Few potential entrants will be found under [the B.A.T.] test.")
163. See Robert Pitofsky, FTC Chairman, Competition Policy In Communication Industries: New Antitrust Approaches, Address Before the Classer Legal Works Seminar on Competitive Policy in Communications Industries: New Antitrust Approaches, Washington, D.C. (Mar. 10, 1997), available in 〈http://www.ftc.gov/speeches/pitl.htm〉.
164. In re Zeneca Group PLC, FTC Docket No. C-3380 (decision and order) (June 7, 1999), available in 〈http://www.ftc.gov/os/1999/9906/zenecad&o.htm〉; see Merger of Zeneca and Astra, Two Significant Suppliers of Pharmaceuticals, Cleared with Conditions, FTC News Release (Mar. 25, 1999), available in 〈http://www.ftc.gov/opa/1999/9903/ astra.htm〈.
165. In re Zeneca Group PLC, FTC Docket No. C-3380 (decision and order) (June 7, 1999), available in 〈http://www.ftc.gov/os/1999/9906/zenecad&o.htm〉; see Merger of Zeneca and Astra, Two Significant Suppliers of Pharmaceuticals, Cleared with Conditions, FTC News Release (Mar. 25, 1999), available in 〈http://www.ftc.gov/opa/1999/9903/ astra.htm〈.
166. In re ABB AB, FTC Docket No. C-3867 (decision and order) (Apr. 14, 1999); see Company to Direct Assets to Settle FTC Charges that Acquisition of Its Chief Competitor Would Violate Antitrust Laws, FTC News Release (Jan. 11, 1999), available in 〈http:// www.ftc.gov/opa/1999/9901 /abb.htm〉.
167. The consent order requires Zeneca to transfer and surrender all of its rights and assets relating to levobupivacaine to Chiroscience no later than 10 business days after the date the Commission accepts the agreement for public comment. The assets to be transferred to Chiroscience consists principally of intellectual property and know-how, and include all of the applicable patents, trademarks, copyrights, technical information, and market research relating to levobupivacaine. During a transitional period, Zeneca is required to continue carrying out certain ongoing activities relating to the commercialization of levobupivacaine, including manufacturing, regulatory, clinical development and marketing activities. Zeneca is also required to divest its approximate three percent investment interest in Chiroscience.
168. Process gas chromatographs are analytical instruments used in process manufacturing applications to measure the chemical composition of a gas or a liquid by separating a sample into its individual components through selective chemical interaction or solubility, then measuring the separated components using a detector. Process mass spectrometers are analytical instruments used in process manufacturing applications to determine the chemical composition of a gas or vapor stream by taking a sample, ionizing the sample, separating the ions for a particular atomic or molecular species by their mass to charge ratio, and measuring the concentration using a detector.
169. See supra note 154 and accompanying text.
170. See Digital Equip. Corp., 5 Trade Reg. Rep. (CCH) ¶ 24,421, at 24,272 (FTC July 14, 1998) (consent order and complaint).
171. See id. at 24,272-73.
172. See id.
173. See id. at 24,276-77.
174. See id.
175. Cadence Design Systems, Inc., 5 Trade Reg. Rep. (CCH) ¶ 24,264, at 24,093 (FTC Aug. 7, 1997) (consent order and complaint).
176. Id.
177. The investigation was confidential and never made public.
178. For a discussion of the evolution of government enforcement in this area, see David Balto, The Murky World of Network Mergers: Searching for the Opportunities for Network Competition, 42 ANTITRUST BULL. 793 (1997).
179. First Data Corp., [1993-1997 Transfer Binder] Trade Reg. Rep. (CCH) ¶ 23,899, at 23,682 (FTC Jan. 16, 1996) (consent order and complaint).
180. Id. at 23,682-83.
181. Automatic Data Processing, Inc., [1993-1997 Transfer Binder] Trade Reg. Rep. (CCH) ¶ 24,151, at 23,951 (FTC Nov. 13, 1996) (complaint).
182. ADP agreed to pay a $2.97 million civil penalty, the third largest ever obtained for a Hart-Scott-Rodino violation and the largest ever involving the failure to submit documents.
183. Automatic Data Processing, Inc., [1993-1997 Transfer Binder] Trade Reg. Rep. (CCH) at 23,951-52.
184. Automatic Data Processing, Inc., 5 Trade Reg. Rep. (CCH) ¶ 24,285, at 24,110 (FTC Oct. 20, 1997) (consent order).
185. Id. at 24,112.
186. Id.
187. Id.
188. Id.
189. Id.
190. In re WorldCom, Inc., 13 Comm. Reg. 477 (P & F 1998).
191. Union Pac. Corp., Finance Docket No. 32,760, Dec. No. 44, 1996 WL 467636 (S.T.B. Aug. 12, 1996). The Surface Transportation Board's decision was upheld against a challenge by utility companies concerned about potential anticompetitive effects in the market for coal shipments. See Western Coal Traffic League v. Surface Transp. Bd., 169 F.3d 775 (D.C. Cir. 1999).
192. Union Pac. Corp., Finance Docket No. 32,760, Dec. No. 44, 1996 WL 467636; see Surface Transportation Board, Surface Transportation Board Issues Written Decisions Clarifying "New Facilities" Condition Imposed on 1996 "Union Pacific/Southern Pacific Merger," News Release No. 99-34 (July 12, 1999), available in 〈http://www.stb.dot.gov/newsrels.nsf/ ByDate〈 (discussing the original decision grant of trackage rights to competitors over Union Pacific/Southern Pacific track).
193. See Balto, supra note 167 (discussing lax enforcement policy of mergers of ATM networks).
194. WorldCom, Inc., 13 Comm. Reg. at 487.
195. Id. at 494-96.
196. Id. at 522-26.
197. For a description of recent government enforcement in this area, see M. Howard Morse, Vertical Mergers: Recent Learning, 53 Bus. LAW. 1217 (1998).
198. See Robert Pitofsky, FTC Chairman, Vertical Restraints and Vertical Aspects of Mergers -A U.S. Perspective, Prepared Remarks Before the Fordham Corporate Law Institute (Oct. 16-17, 1997), available in 〈http://ww.ftc.gov/speeches/pitofsky/fordham7.htm〉; Michael H. Riordan & Steven C. Salop, Evaluating Vertical Mergers: A Post-Chicago Approach, 63 ANTITRUST L.J. 513, 516-22 (1995); see also Michael W. Klass & Michael A. Salinger, Do New Theories of Vertical Foreclosure Provide Sound Guidance for Consent Agreements in Vertical Merger Cases?, 40 ANTITRUST BULL. 667 (1995).
199. See Robert Pitofsky, FTC Chairman, Vertical Restraints and Vertical Aspects of Mergers - A U.S. Perspective, Prepared Remarks Before the Fordham Corporate Law Institute (Oct. 16- 17, 1997), available in 〈http://ww.ftc.gov/speeches/pitofsky/fordham7.htm〉; Michael H. Riordan & Steven C. Salop, Evaluating Vertical Mergers: A Post-Chicago Approach, 63 ANTITRUST L.J. 513, 516-22 (1995); see also Michael W. Klass & Michael A. Salinger, Do New Theories of Vertical Foreclosure Provide Sound Guidance for Consent Agreements in Vertical Merger Cases?, 40 ANTITRUST BULL. 667 (1995).
200. See Robert Pitofsky, FTC Chairman, Vertical Restraints and Vertical Aspects of Mergers - A U.S. Perspective, Prepared Remarks Before the Fordham Corporate Law Institute (Oct. 16- 17, 1997), available in 〈http://ww.ftc.gov/speeches/pitofsky/fordham7.htm〉; Michael H. Riordan & Steven C. Salop, Evaluating Vertical Mergers: A Post-Chicago Approach, 63 ANTITRUST L.J. 513, 516-22 (1995); see also Michael W. Klass & Michael A. Salinger, Do New Theories of Vertical Foreclosure Provide Sound Guidance for Consent Agreements in Vertical Merger Cases?, 40 ANTITRUST BULL. 667 (1995).
201. Although the 1992 Horizontal Merger Guidelines supersede the 1984 Merger Guidelines with respect to horizontal mergers, the provisions in the 1984 Merger Guidelines regarding non-horizontal mergers [§§ 4.1, 4.2] have not been modified. The 1984 Guidelines provide a convenient starting point for analysis of non-horizontal mergers. See Statement, Merger Guidelines, supra note 22, at 20,569.
202. See id. at 20,571.
203. See id.
204. See Pitofsky, supra note 187, at III.A. ("If . . . 'two level' entry is more risky, more difficult, or more time-consuming than entry into the entrant's primary market alone, a merger that increases vertical integration could create more barriers to entry").
205. See HERBERT HOVENKAMP, ECONOMICS AND FEDERAL ANTITRUST LAW § 5.4, at 144 (1985); F.M. SCHERER AND DAVID Ross, INDUSTRIAL MARKET STRUCTURE AND ECONOMIC PERFORMANCE 622-24 (1990) (contending innovators that perceive that their R & D costs will not be recouped due to free-riding by rivals will choose not to invest in R & D); Michael Katz and Carl Shapiro, R&D Rivalry with Licensing or Imitation, 77 AM. EGON. REV. 402, 419 (1987) (opining rate of technological development will decrease as the free- rider's cost of imitation decreases); Edwin Mansfield, How Rapidly Does New Industrial Technology Leak Out?, 34 J. INDUS. ECON. 217, 222 n.6 (1985) (stating "firms' perceptions of how rapidly their new technology will leak out to their rivals determines . . . whether or not they are willing to develop and introduce such an innovation").
206. See HERBERT HOVENKAMP, ECONOMICS AND FEDERAL ANTITRUST LAW § 5.4, at 144 (1985); F.M. SCHERER AND DAVID Ross, INDUSTRIAL MARKET STRUCTURE AND ECONOMIC PERFORMANCE 622-24 (1990) (contending innovators that perceive that their R & D costs will not be recouped due to free-riding by rivals will choose not to invest in R & D); Michael Katz and Carl Shapiro, R&D Rivalry with Licensing or Imitation, 77 AM. EGON. REV. 402, 419 (1987) (opining rate of technological development will decrease as the free- rider's cost of imitation decreases); Edwin Mansfield, How Rapidly Does New Industrial Technology Leak Out?, 34 J. INDUS. ECON. 217, 222 n.6 (1985) (stating "firms' perceptions of how rapidly their new technology will leak out to their rivals determines . . . whether or not they are willing to develop and introduce such an innovation").
207. See HERBERT HOVENKAMP, ECONOMICS AND FEDERAL ANTITRUST LAW § 5.4, at 144 (1985); F.M. SCHERER AND DAVID Ross, INDUSTRIAL MARKET STRUCTURE AND ECONOMIC PERFORMANCE 622-24 (1990) (contending innovators that perceive that their R & D costs will not be recouped due to free-riding by rivals will choose not to invest in R & D); Michael Katz and Carl Shapiro, R&D Rivalry with Licensing or Imitation, 77 AM. EGON. REV. 402, 419 (1987) (opining rate of technological development will decrease as the free-rider's cost of imitation decreases); Edwin Mansfield, How Rapidly Does New Industrial Technology Leak Out?, 34 J. INDUS. ECON. 217, 222 n.6 (1985) (stating "firms' perceptions of how rapidly their new technology will leak out to their rivals determines . . . whether or not they are willing to develop and introduce such an innovation").
208. See HERBERT HOVENKAMP, ECONOMICS AND FEDERAL ANTITRUST LAW § 5.4, at 144 (1985); F.M. SCHERER AND DAVID Ross, INDUSTRIAL MARKET STRUCTURE AND ECONOMIC PERFORMANCE 622-24 (1990) (contending innovators that perceive that their R & D costs will not be recouped due to free-riding by rivals will choose not to invest in R & D); Michael Katz and Carl Shapiro, R&D Rivalry with Licensing or Imitation, 77 AM. EGON. REV. 402, 419 (1987) (opining rate of technological development will decrease as the free- rider's cost of imitation decreases); Edwin Mansfield, How Rapidly Does New Industrial Technology Leak Out?, 34 J. INDUS. ECON. 217, 222 n.6 (1985) (stating "firms' perceptions of how rapidly their new technology will leak out to their rivals determines . . . whether or not they are willing to develop and introduce such an innovation").
209. PacifiCorp, 5 Trade Reg. Rep. (CCH) ¶ 24, 384, at 24, 226 (FTC Feb. 18, 1998) (proposed consent order and complaint). The proposed order was withdrawn before becoming final, and the investigation closed by the Commission, because during the public comment period PacifiCorp withdrew its bid for The Energy Group and eventually sold virtually all of its Energy Group stock.
210. See id. at 24,231-32.
211. For a description of pharmacy benefit managers and the competitive concerns raised by their acquisition by drug companies, see David A. Balto, A Whole New World?: Pharmaceutical Responses to the Managed Care Revolution, 52 FOOD & DRUG L.J. 83 (1997); Christine Dodd, The Merck-Medco Merger: An Isolated Incident or a Catalyst for the Transformation of an Industry?, 63 U. CIN. L. REV. 1767 (1995).
212. For a description of pharmacy benefit managers and the competitive concerns raised by their acquisition by drug companies, see David A. Balto, A Whole New World?: Pharmaceutical Responses to the Managed Care Revolution, 52 FOOD & DRUG L.J. 83 (1997); Christine Dodd, The Merck-Medco Merger: An Isolated Incident or a Catalyst for the Transformation of an Industry?, 63 U. CIN. L. REV. 1767 (1995).
213. Merck and Co. Inc., 5 Trade Reg. Rep. (CCH) ¶ 24,493, at 24,340 (FTC Aug. 27, 1998) (proposed consent order and complaint).
214. Id. at 24,341-42. Under the order, Medco would be free to offer a more restrictive formulary as well as an open formulary.
215. See id.
216. See id. at 24,342.
217. TRW, Inc., 5 Trade Reg. Rep. (CCH) ¶ 24,364, at 24,194 (FTC Apr. 6, 1998) (consent order & complaint).
218. See id. at 24, 195.
219. See id.
220. See id.
221. Shell Oil Co. & Texaco, Inc., 5 Trade Reg. Rep. (CCH) ¶ 24,362, at 24,189 (Apr. 21, 1998) (consent order and complaint); see supra notes 140-41 and accompanying text.
222. See id. at 24,192.
223. See id.
224. 64 Fed. Reg. 14,725 (1999).
225. Id. at 14,727.
226. Id.
227. Id.
228. Section 7 of the Clayton Act extends jurisdiction over partial stock acquisitions, although there is an exception for investments made "solely for an investment." 15 U.S.C. § 18 (1994).
229. See United States v. E.I. Dupont de Nemours & Co, 353 U.S. 586 (1957); F. & M. Schaefer Corp. v. C. Schmidt & Sons, Inc., 597 F.2d 814, 818-19 (2d Cir. 1979); Gulf & Western Indus, v. Great Atl. & Pac. Tea Co., 476 F.2d 687 (2d Cir. 1973).
230. For a discussion of these concerns, see V AREEDA & TURNER, supra note 149, ¶ 1203, at 316 (1980).
231. 597 F.2d at 814.
232. Id. at 818.
233. Time Warner, Inc., [1993-1997 Transfer Binder] Trade Reg. Rep. (CCH) ¶ 24,104, at 23,911 (FTC Feb. 3, 1997) (consent order and complaint).
234. Id. at 23,912.
235. Id.
236. See AT&T Corp., 64 Fed. Reg. 2506 (DOJ 1999) (proposed final judgment and competitive impact statement).
237. Id. at 2511. The Department observed that these effects might be greater depending upon the percentage of ownership interest that the acquiring firm had in the acquired firm. Thus, if the acquiring firm had only a 20% interest its incentives and willingness to increase prices would be less than if it had a far more substantial ownership interest.
238. Id.
239. Id. at 2512.
240. See Medtronic, Inc., Analysis to Aid Public Comment, 63 Fed. Reg. 53,919 (Oct. 7, 1998) (analysis to aid public comment).
241. See DOJ News Release, American Airlines Cleared to Acquire Stock in Argentine Airline (July 8, 1998), available in 〈http://www.usdoj.gov/atr/public/press_releases/1998/ 1825.htm〉 (announcing American Airlines allowed to acquire 8.5% of ailing Argentine competitor after agreeing not to have any representatives on the board, not to vote its stock, and not to influence Aerolineas competitive decisions).
242. Shell Agrees to Sell Its Interest in Plantation Pipe Line Company to Kinder Morgan Energy Partners, L.P., BUS. WIRE, June 19, 1998.
243. See John M. Nannes, Deputy Assistant Attorney General, Antitrust Division, DOJ, The Importance of Entry Conditions in Analyzing Antitrust Issues, Address Before the International Aviation Club 6 (July 20, 1999), available in 〈http://ww.usdoj.gov/atr/public/ speeches/2574.pdf〉.
244. Id.