United States

Jefferson Health / Einstein Healthcare Network

FTC / Pennsylvania Attorney General

FTC Administrative Complaint / US District Court for the Eastern District of Pennsylvania

Inpatient general acute care (GAC) hospital services and inpatient acute rehabilitation services in Philadelphia and Montgomery Counties, Pennsylvania

Alleged combined shares of between 45% and 70% in different service lines in north Philadelphia and Montgomery County

Will the merger eliminate competitive pressure that has driven quality improvements and lowered rates, or will the merger result in price efficiencies and cost synergies?

Is the relevant geographic market confined to the northern Philadelphia and Montgomery County areas?

The FTC sued to block the merger of Jefferson Health and Albert Einstein Healthcare Network, two hospital systems in Pennsylvania, arguing that the parties compete on quality and service, which benefits consumers by resulting in increased investments in medical facilities and new technologies. The FTC also argued that the transaction would result in insurers choosing to pay more to maintain access to all hospitals in the market. Together, the parties allegedly control 60% of inpatient GAC services in north Philadelphia and 45% in Montgomery County, and 70% of inpatient acute rehabilitation services in Philadelphia. 

In early December, the district court denied the FTC’s motion for a preliminary injunction. The district court found the transaction was unlikely to reduce competition in the Philadelphia area. The district court reasoned that the FTC’s alleged markets wrongly focused more on patient preference than on health insurers’ ability to form networks without the competing hospitals.

The FTC sought an emergency injunction to prevent the transaction from closing pending the FTC’s appeal of the lower court decision. On December 22, 2020, the US Court of Appeals for the Third Circuit denied the FTC’s request without explanation. On January 6, 2021, the FTC issued an order withdrawing the matter from adjudication, paving the way for the parties to close the transaction.

Hackensack Meridian Health / Englewood Healthcare Foundation

FTC 

Part 3 Administrative Proceeding

Inpatient general acute care (GAC) hospital services in Bergen County, New Jersey

Merging parties would control three of six area hospitals

Will the merger eliminate close competition between the parties that has resulted in lower prices and increased quality of care?

Is the relevant geographic market confined to Bergen County, New Jersey?

The FTC sued to block Hackensack Meridian Health’s (HMH) acquisition of Englewood Healthcare Foundation. HMH is a large healthcare network that operates 12 GAC hospitals in northern and central New Jersey. HMH operates two GAC hospitals in Bergen County, including its flagship hospital. Englewood operates a large hospital just 10 miles away. The FTC alleges that the geographic market is limited to Bergen County, which is the most populous county in the state and the main area of competition between the merging parties’ hospitals. According to the FTC, HMH and Englewood compete head to head on price and non-price factors. The transaction would give HMH control of half of the hospitals in Bergen County, which would allegedly make it more difficult for health insurers to exclude the merged entity from its healthcare networks and result in higher prices. 

The administrative trial is scheduled to begin on June 15, 2021.

Altria Group / JUUL Labs Inc.

FTC

Part 3 Administrative Proceeding

Closed-system electronic cigarettes

JUUL “dominated” the relevant market with 70% market share; Altria was the second-largest player

Did Altria’s becoming JUUL’s largest shareholder immediately following Altria’s agreement to exit the market eliminate a competitive threat to JUUL?

The FTC has brought Sherman Act Section 1 and Clayton Act Section 7 claims against the companies, alleging Altria agreed not to compete with JUUL in exchange for a 35% ownership interest in JUUL. The FTC alleges that JUUL was the dominant market player at the time of the agreements, and that the agreements harmed competition by eliminating the second-largest player in the market and JUUL’s biggest competitive threat, Altria. 

This FTC administrative complaint presents the rare occurrence of a partial acquisition or ownership stake challenge going to trial. The FTC proceeding has been stayed multiple times because of the COVID-19 pandemic, and the evidentiary hearing is currently set to take place April 2021.

Pfizer Inc.’s Upjohn division

Mylan N.V.

Generic drugs
Proposed acquisition would reduce existing suppliers from five to four (or fewer)
Proposed acquisition would reduce future competition in three generic drug markets from three to two (or fewer)

15 months

FTC

The FTC alleged the transaction would reduce the number of existing suppliers in seven generic drug markets. For most drugs, the FTC alleged the number of competitors would be reduced from four to three or from three to two. However, the FTC also alleged the transaction would harm competition for two generic drug markets with five suppliers where the drug had experienced shortages or supply disruptions. Pfizer and Mylan agreed to divest to Prasco, LLC Upjohn’s rights and assets for six of the drugs and Mylan’s rights and assets to one of the drugs. 

The FTC also alleged the transaction would delay or eliminate a potential entrant for three generic drugs. The consent order requires advance FTC approval prior to Upjohn, Mylan or Viatris acquiring an interest in or exercising control over any third party’s rights to any of these three generic drugs.

Yes

Harvard Pilgrim Health Care

Health Plan Holdings (Tufts Health Plan)

Commercial health insurance plans for small employers in New Hampshire

3 to 2

16 months

DOJ

Harvard Pilgrim and Tufts Health Plan agreed to divest Tufts Health Freedom Plan to UnitedHealth Group. The DOJ alleged that Harvard Pilgrim and Tufts Freedom are two of the top three commercial group health insurers offering to private employers with fewer than 100 employees in New Hampshire.

Yes

Stryker Corp.

Wright Medical Group N.V.

US markets for total ankle replacement and finger joint implants

3 to 2

13 months

FTC

Stryker and Wright agreed to divest to DJO Global all of Stryker’s total ankle replacement and finger joint implant assets. The FTC alleged that Stryker and Wright compete head to head and are close substitutes for total ankle replacements and finger joint implants in the United States. According to the FTC, the parties were two of only three significant competitors and combined would control 75% and over 50% of the total ankle replacement and finger joint implant markets, respectively. The FTC alleged that the loss of direct competition would result in increased prices and decreased innovation.

Yes

Intuit Inc.

Credit Karma Inc.

Digital Do-It-Yourself (DDIY) Tax Preparation products

Combined share of over 70%

9 months

DOJ

Intuit and Credit Karma agreed to divest Credit Karma’s tax business to Square Inc. to maintain competition in the DDIY tax preparation products market. The DOJ alleged the combined company would have nearly 70% share in the DDIY market. Although Credit Karma’s tax business had entered the DDIY market just four years ago, the DOJ alleged it was a disruptive company and competed aggressively with Intuit’s TurboTax, the leader in the DDIY market. According to the DOJ, the loss of this head-to-head competition would diminish quality and innovation and lead to higher prices.

Yes

E. & J. Gallo Winery

Constellation Brands

Six types of low-priced or entry-level wine and spirit products

Parties are the two largest suppliers

20 months

FTC

Gallo and Constellation Brands agreed to divest certain low-priced or entry-level wine and spirit product lines: entry-level on-premises sparkling wine, low-priced brandy, low-priced port, low-priced sherry and high color concentrates (HCCs). The FTC alleged Gallo and Constellation were the two largest suppliers for each of these products. 

Yes

Europe

PPF Group NV (PPF)

Central European Media Enterprises (CME)

TV sports broadcasting

1 month

EC

PPF and CME acquire sports broadcasting rights in the Czech Republic and Slovakia and sell TV advertising space in the Czech Republic.

The EC cleared the transaction unconditionally. The EC concluded that PPF and CME generally do not compete for the acquisition of the same sports rights. In addition, the transaction would only lead to a limited increase in PPF’s existing share of the market for the wholesale supply of TV channels in Bulgaria, the Czech Republic and Slovakia and would not add significantly to CME’s position in the market for the sale of advertising space in the Czech Republic.

N/A

DIC Corporation (DIC)

BASF Colors & Effects

Pigments 

7 months

EC

BASF Colors & Effects and DIC were considered market leaders in the production and sale of pigments and other colors.

The EC alleged that the proposed transaction would reduce competition in the market for the supply of perylene pigments and quinacridone pigments. These pigments are suitable for highly complex applications, such as automotive coatings, advanced plastics applications and some industrial applications. In particular, the EC found that for some perylene and quinacridone pigments, only a small number of manufacturers are considered suitable suppliers for customers requiring high-specification pigments.

To address the EC’s concerns, DIC offered to divest its pigment manufacturing facility located in South Carolina, where the large majority of DIC’s perylene and quinacridone pigments were produced.

No

Fiat Chrysler Automobiles N.V. 

Peugeot S.A.

Automotive vehicles

7.5 months

EC

Fiat Chrysler and Peugeot are two large global automotive companies with a strong manufacturing base in the European Economic Area (EEA).

The EC found that the transaction would harm competition in the market for small light commercial vehicles in nine EEA Member States (Belgium, the Czech Republic, France, Greece, Italy, Lithuania, Poland, Portugal and Slovakia), where the companies have high or very high combined market shares and are particularly close competitors. The acquisition would therefore have likely led to higher prices for customers.

To address the EC’s concerns, the companies committed to extend the cooperation agreement between Peugeot and Toyota for small light commercial vehicles under which Peugeot produces the vehicles for sale by Toyota under the Toyota brand mainly in the European Union, and to amend the “repair and maintenance” agreements for passenger cars and light commercial vehicles in force between Peugeot, Fiat Chrysler and their repairer networks, to facilitate access for competitors to Peugeot and Fiat Chrysler ‘s repair and maintenance networks for light commercial vehicles.

N/A

Carlsberg A/S (joint venture (JV) partner)

Marston’s PLC (joint venture partner)

Brewing

2.5 months

CMA (after referral from the EC)

The transaction involved the creation of a new JV in which Carlsberg and Marston’s will have 60% and 40% share, respectively. The JV will be formed by the amalgamation of each party’s UK brewing, wholesaling and distribution businesses and some ancillary services.

The activities of the JV partners overlap in the brewing of a range of beer and cider brands, the wholesale of beverages to on-trade customers and in the supply of contract brewing services. They are also the exclusive importers of certain international third-party brands in the United Kingdom. The CMA found that the combined share of the JV partners is relatively low or modest and that there are a number of brewers who would continue to act as a strong competitive constraint on the JV. For these reasons, the CMA cleared the transaction unconditionally.

N/A

Evolution Gaming Group AB

NetEnt AB

Online casino games

5 months

CMA

The primary overlap between the parties in the United Kingdom is the supply of online “‘live” casino games to gambling operations on a business-to-business basis. Even though the CMA found that the merged entity will have a relatively high share of supply, the increment arising from the merger would be very small. This is because NetEnt has only a limited presence in the market. Moreover, the merged entity would face strong competitive constraints from other suppliers post-merger.

N/A

XPO Logistics, Inc. (XPO)

Kuehne + Nagel Drinkflow Logistics Holdings Limited

Contract logistics services

8.5 months

CMA

XPO and Kuehne + Nagel Limited (KNL) overlap in the supply of contract logistics services in the United Kingdom, in particular in the supply of contract logistics in the food, drink and retail segments. The primary overlap between XPO and the target business is regarding secondary drinks distribution, which involves the “last mile” distribution of drinks to retail outlets of on-trade customers.

According to the CMA’s assessment, the merged entity would be the second largest secondary drinks distributor in the United Kingdom. However, the CMA found that the parties are not particularly close competitors and the merged entity would continue to be constrained by a number of other secondary drinks distributors in the United Kingdom. Accordingly, the CMA concluded that the proposed transaction would not significantly lessen competition in the United Kingdom.

N/A