I INTRODUCTION

In 1976, the United States became the first jurisdiction with a mandatory pre-merger notification requirement when Congress promulgated the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act) to enhance enforcement of Section 7 of the Clayton Act. Under the HSR Act, the US Federal Trade Commission (FTC) and the US Department of Justice’s Antitrust Division (DoJ) (collectively, the agencies) receive such notifications concurrently and, through a clearance process, decide which agency will investigate transactions that potentially raise issues under Section 7 of the Clayton Act. The HSR Act provides both a ‘size-of-transaction’ test and a ‘size-of-person’ test for determining whether a filing is required. Subject to certain exemptions, for fiscal year (FY) 2016,2 the size-of-transaction test is satisfied if the acquirer would hold an aggregate total amount of voting securities and assets of the target in excess of $78.2 million. Transactions in which holdings post-acquisition will be valued between $78.2 million and $312.6 million are reportable only if the size-of-person threshold is also met: either the acquiring or acquired person must have total assets or annual net sales of at least $156.3 million, and at least one other person must have total assets or annual net sales of $15.6 million. Transactions valued over $305.1 million are not subject to the size-of-person test, and are reportable unless otherwise exempt.

Important exemptions are provided in the implementing regulations,3 most notably for (1) acquisitions of goods or real property in the ordinary course of business; (2) acquisitions of bonds, mortgages and other debt obligations; (3) acquisitions of voting securities by an acquirer holding at least 50 per cent of the issuer’s voting securities prior to the acquisition; (4) acquisitions solely for investment purposes in which, as a result of the acquisition, the acquirer holds 10 per cent or less of the outstanding voting securities of the issuer; (5) intra-corporate transactions; (6) acquisitions of convertible voting securities (but not the conversion of such securities); (7) acquisitions by securities underwriters in the process of underwriting; (8) acquisitions of collateral by creditors upon default; and (9) acquisitions involving foreign persons if the assets or revenues involved fall below certain adjusted thresholds that are geared to focus on assets located in the United States or for which there are sufficient sales in or into the United States. Failure to file can result in civil penalties of $40,000 for every day the person does not comply with the HSR Act.

The non-reportability of a transaction under the HSR Act does not preclude either the FTC or the DoJ from reviewing, and even challenging, a transaction under Section 7 of the Clayton Act. Nor does the expiry or termination of the HSR Act waiting period immunise a transaction from post-consummation challenge under the Clayton Act. In addition, even in reportable transactions, state attorneys general may review transactions, typically in conjunction with the federal enforcement agency investigating the transaction. Certain industries also require pre-merger approval of federal regulatory agencies. For instance, the Federal Energy Regulatory Commission will review electric utility and interstate pipeline mergers; the Federal Communications Commission will review telecommunications and media mergers; the Board of Governors of the Federal Reserve System will review bank mergers; and the Surface Transportation Board will review railroad mergers.

State public utilities commissions may have separate authority to review telecommunications and utility mergers. Finally, under the Exon-Florio Act, the Committee on Foreign Investment in the United States may review acquisitions by foreign persons that raise national security issues.

II YEAR IN REVIEW

The agencies entered into a number of enforcement actions during FY 2015.4 The FTC uniquely possesses the ability to seek a preliminary injunction to block completion of a proposed merger in a federal district court and to challenge both proposed and completed mergers in its own administrative proceeding. In addition, the FTC can enter into a binding consent decree with the transaction parties without judicial intervention. In contrast, the DoJ must bring its challenges (and file any consents) in federal district court, with a judge ultimately deciding the case. The duration of the administrative process is sufficiently long that rarely will a pending transaction survive the appeals process. For instance, the FTC’s administrative challenge of a completed acquisition by Polypore International Inc that commenced in September 20085 resulted in a March 2010 ruling by the administrative law judge that the acquisition violated the law.6 The transaction parties appealed the ruling to the full Commission, which held an oral argument on 28 July 2010 and unanimously affirmed the decision on 8 November 2010 (over two years after the challenge commenced); the Eleventh Circuit affirmed the Commission’s decision almost two years later (i.e., over four years after it challenged the merger).7 The US Supreme Court denied certiorari in 2013.8

During FY 2015, the FTC continued to have an impressive track record in its federal court activities. First, the US Supreme Court denied certiorari9 to review the FTC’s victory in the Promedica Health System/St Luke’s Hospital in Ohio merger.10

Second, the Ninth Court affirmed the district court’s decision in St Luke’s/Saltzer Medical Group, in which the FTC successfully challenged St Luke’s Health System’s acquisition of Idaho’s largest independent, multispecialty physician group.11 The case turned in large part on the court’s adoption of a narrow geographic market consisting of Nampa, since the combined entity included 80 per cent of the primary care physicians in Nampa. The court found it highly likely that healthcare costs would rise because the combined entity obtained a dominant market position that would enable it to negotiate higher reimbursement rates from health insurance plans, which would increase consumer costs; and would raise rates for ancillary services to the higher hospital-billing rates. The Ninth Circuit found the district court had not erred in limiting relevant geographic market for purposes of evaluating the merger’s competitive effects to Nampa. Nor did the district court clearly err in its factual findings that the acquisition was anticompetitive given the extremely high concentration levels and the statements and past actions of the transaction parties, which made it likely that St Luke’s would raise reimbursement rates. The appellate court, however, did not find that the record supported the district court’s determination that St Luke’s increased leverage for primary care physician services would result in higher fees for ancillary services. Also noteworthy is the circuit court’s discussion of efficiencies, where it remained ‘skeptical about the efficiencies defense in general and about its scope in particular. It is difficult enough in [merger] cases to predict whether a merger will have future anticompetitive effects without also adding to the judicial balance a prediction of future efficiencies.’12

In February 2015, following a 14-month investigation, the FTC sued to enjoin the acquisition of US Food Inc by Sysco Corp.13 The FTC alleged that the combined entity would comprise 75 per cent of national food service distribution services and involved the only two broadline distributors able to serve national customers that purportedly require consistency of price, service, ordering and products. The parties contended that food service distribution competitors include specialty distributors, system distributors and ‘cash-and-carry’ stores. The parties had offered a divesture package, with an ‘upfront buyer’ during the investigation. The court ruled for the FTC and the parties abandoned the transaction.14

In May 2015, the FTC sued to enjoin the acquisition of Synergy Health plc (Synergy) by Steris Corporation (Steris).15 The FTC asserted that Steris was one of only two providers of contract gamma irradiation sterilisation in the United States, and that Synergy was about to enter into the US market. The court denied the FTC’s preliminary injunction request, finding insufficient evidence that Synergy would have entered the market ‘but for’ the transaction, based on evidence that Synergy had decided not to enter due to lack of demand.16

In FY 2015, the FTC entered into 17 consents involving proposed mergers. In addition, in another reported matter, the transaction parties abandoned the transaction after the FTC expressed antitrust concerns or brought a lawsuit. During the first six months of
FY 2016, the FTC brought three challenges in hospital mergers,17 and another merger challenge in federal district court to block the Staples/Office Depot merger.18 The FTC also entered into seven consents involving proposed mergers and one consent involving a consummated merger. Most of the FTC’s challenges and consents during the past few years have involved the pharma and healthcare sectors. The FTC commenced three new preliminary injunction challenges in the first eight months of FY 2016 (winning one19 and losing one20 as of the time of writing).

During FY 2015, the DoJ had one merger challenge in federal court abandoned by the parties just prior to the trial,21 and settled before trial–with a significant divestiture commitment from the parties in another case.22 The DoJ also entered into seven consents involving proposed transactions. In addition, the parties abandoned five proposed transactions due to antitrust concerns.

In the first eight months of FY 2016, the DoJ entered into seven consents involving proposed transactions. In addition, transaction parties abandoned six transactions due to antitrust concerns, including two transactions in which the DoJ had sued the parties in federal district court in FY 2015 to enjoin the transaction,23 and one transaction in which the DOJ commenced the suit in FY 2016.24

Also, on 17 March 2016, the DoJ filed a lawsuit in the Central District of California seeking to block the acquisition of Freedom Communications Inc, a publisher of two newspapers in bankruptcy.25 The next day, the court granted a temporary restraining order;26 the bankruptcy court approved an alternative buyer as the purchaser of these two newspapers on 21 March 2016.27

The recent enforcement actions and agency officials’ speeches suggest the following enforcement focuses during the Obama Administration.

First, the agencies are likely to continue to investigate and challenge transactions post-completion, particularly in deals not subject to HSR Act notification. Second, potential competition vertical and conglomerate theories are being evaluated and even pursued at times. Third, the agencies will settle merger challenges even after litigation commences. Fourth, the agencies have sought behavioural remedies, often in addition to structural remedies, to address both horizontal and vertical concerns. Finally, both agencies have increasingly settled enforcement actions with consents that provided for divestiture to a specific, upfront buyer and divestiture packages that include assets outside of the market.

III THE MERGER CONTROL REGIME

Parties can approach the agencies prior to the filing of an HSR Act notification (or in transactions that are not notifiable but that may raise antitrust concerns, in lieu of filing under the HSR Act), and the agencies can extend confidentiality to any substantive discussions by officially commencing an investigation. In contrast with many other jurisdictions, such consultations are not common prior to the public announcement of a transaction.

An acquisition that is subject to HSR Act notification may not be completed until the requisite HSR forms have been filed with the agencies and the applicable waiting period has expired or has been terminated early. In most transactions, the acquired and the acquiring parties must file separate HSR forms, and the waiting period will not commence until both parties make their filings. In tender offers, the waiting period commences with the filing of the HSR form by the acquirer.

The initial waiting period is 30 days (15 days in the case of a cash tender offer or bankruptcy filing). If the period expires on a weekend or holiday, then it will be extended until the next business day. At the parties’ request, the waiting period can be terminated earlier by the agencies. Technically, the waiting period may not be extended other than by the issuance of a request for additional information and documentary material (second request). In practice, however, the merging parties may withdraw and refile their HSR forms (recommencing the waiting period), agree not to complete the transaction to grant the antitrust enforcement agencies additional time or agree with the enforcement agency out of court that compliance with the HSR Act will not occur until a further submission is made.

The FTC and the DoJ have concurrent jurisdiction over HSR notifications. A clearance process exists between the agencies whereby one of the agencies can get ‘cleared’ to investigate the transaction. Once an agency is cleared, it can contact the parties (and third parties) for information relating to the deal. The agencies have adopted policies to facilitate the investigation of transactions during the initial waiting period, aiming at decreasing the number of transactions in which second requests are issued and developing more precise second requests. The ability to engage in meaningful review of a transaction during this initial waiting period, however, depends on the transaction parties being willing to provide certain documents and information quickly and voluntarily.

If, prior to the expiry of the initial waiting period, the reviewing agency issues a second request (typically on the last business day of the waiting period), then the clock stops until the transaction parties comply with the second request Unless terminated earlier or otherwise agreed to by the parties, the second waiting period ends on the 30th day (or, in the case of a cash tender offer or bankruptcy, the 10th day) following substantial compliance with the second request. Again, if the waiting period expires on a weekend or holiday, it is extended to the next business day. In tender offers, the waiting period is determined according to when the acquiring party substantially complies. It is not unusual for the parties to agree to extend the waiting periods in exchange for a dialogue with the agency of the concerns presented, particularly if the parties are willing to resolve remaining concerns with a consent decree.

In merger investigations, the agencies typically seek information from third parties (competitors, customers, suppliers, etc.) that is relevant to the review of the transaction. The information may be requested or required. Both agencies can also seek interviews or depositions. Generally, the information provided by the merger parties and third parties is not subject to public disclosure. State attorneys general can also review mergers – a process has been in place for about a decade that facilitates their participation in the HSR review. With the consent of the merger parties, the agencies will discuss the information received by them and coordinate their investigations with the state enforcers. Ultimately, if the transaction is challenged, the state attorneys general often, but not always, join with the agency as plaintiffs. In some transactions, the state attorneys general will seek additional relief. State attorneys general sometimes will also require transaction parties to pay ‘attorneys’ fees’ for their review of the transaction as part of the settlement. In addition, US antitrust authorities regularly consult with their foreign counterparts during a merger investigation. Such coordination and dialogue requires consent from the transaction parties. The US authorities recently signed a cooperation agreement with China to facilitate such cooperation.

A high percentage of the transactions in which an agency issues a second request will result in some type of enforcement action (i.e., court challenge, consent decree or restructuring). The agencies have a strong preference for structural relief, and require either upfront buyers or short (i.e., 60 to 90 days) divestiture periods. The DoJ will sometimes forgo the need for a consent decree if the merger parties eliminate the potential anticompetitive problems through a voluntary restructuring of the transaction or a sale of assets (a ‘fix-it-first’ solution). The DoJ also uses ‘pocket consent decrees’ (decrees that are entered into by the parties and the DoJ but not filed with the court unless either the agency decides it needs relief or the parties fail to implement the remedy or obtain a regulatory order). These pocket consent decrees can also be used to permit a transaction to proceed before the agency completes its investigation; for instance, in a hostile tender offer situation where the target is uncooperative and seeks to use the HSR review as a means of delay or process denial. Both the FTC and the DoJ permit the transaction to close once they provisionally accept the consent decree and publish it for comment. The FTC approves the final consent decree after the public comment period expires and the staff sends its recommendation to the Commission; the DoJ files the proposed judgment with a federal district court and seeks approval and entry of the judgment by the judge following the public comment period provided under the Tunney Act.28

If the parties and the reviewing agency are unable to reach an agreement that resolves the agency’s concerns, then the agency can seek a preliminary injunction from a federal district court to block the transaction’s completion. The DoJ can also challenge a completed merger in federal district court. The FTC, regardless of whether it seeks a preliminary injunction, can also challenge a proposed or consummated merger in its own administrative court.

The agencies can challenge a transaction at any time post-consummation. There is no statute of limitations barring the challenge or suspensory effect from the expiration of the HSR waiting periods. State attorneys general can bring challenges as well, on their own behalf or as parens patriae of citizens. Private parties can bring challenges, although in most jurisdictions, the standing requirements may be difficult to meet.

IV OTHER STRATEGIC CONSIDERATIONS

Although providing the state attorneys general with an active role in the HSR review may complicate the process and potentially delay the resolution of the review at the agency, it is generally advisable that transaction parties consent to such a request Most states have compulsory process authority and, absent the protocol, can issue subpoenas for information, documents and even testimony. States can also bring challenges. Having the states work with the agency eliminates confusion, an additional burden of compliance with requests and potentially diverging outcomes. In some recent DoJ consents and challenges, for instance, state attorneys general joined in the DoJ’s decisions.

Similarly, many transactions meeting the jurisdiction thresholds of the HSR Act will also require notification in a number of other jurisdictions.29 The trend is for the FTC and the DoJ to cooperate with other jurisdictions in reviewing cross-border mergers. In that regard, the US agencies have entered into several bilateral and multilateral cooperation agreements. The agencies have cooperated extensively with Canada, Mexico and the European Commission on several mergers, and this cooperation is likely to continue. Parties should consider agreeing to such cooperation for the same reasons as with the states: to avoid confusion, the burden of compliance with requests and potential diverging outcomes. Such coordination is particularly crucial when remedies are likely to be required that affect assets or businesses in more than one jurisdiction. Even with such cooperation, however, geographic and analytical differences can exist among reviewing jurisdictions. It is more likely that divergence will occur between the established competition authorities (e.g., the United States’ and the European Commission’s) and the newer competition authorities (e.g., India’s and China’s).

V OUTLOOK and CONCLUSIONS

From the very outset of the Obama Administration, the antitrust leadership of the federal antitrust agencies had a clear objective of influencing antitrust policy and precedent. The FTC and the DoJ issued new horizontal merger guidelines on 19 August 2010.30 These guidelines marked the first major revision in over 25 years. On 17 June 2011, the DoJ issued an updated policy guide to merger remedies. The merger remedies guide considers not only the components that constitute an effective structural remedy, but also the role of behavioural provisions, particularly in vertical mergers and in transactions involving intellectual property. The second term of the Obama administration provided continuity in merger enforcement policy that could lead to a truly long-term impact.

The simultaneous district court and administrative court litigation strategy being used by the FTC raises the question of whether there should be different standards for the FTC and the DoJ in merger cases. Section 13(b) of the FTC Act authorises the FTC in a ‘proper case’ to seek permanent injunctive relief against entities that have violated or threatened to violate any of the laws it administers.31 The statute provides that an injunction may be granted only ‘upon a proper showing that, weighing the equities and considering the Commission’s likelihood of ultimate success, such action would be in the public interest’.32 In contrast, under traditional equitable standards, a plaintiff must show a likelihood of success on the merits. The circuits have not reached an agreement on what the FTC’s burden of proof should be. Reference to a public interest criterion has resulted in some circuits relaxing the standard imposed on the FTC from the traditional equitable standards applicable to the DoJ and other plaintiffs in an injunctive proceeding.

In this last year of the Obama administration, we are unlikely to see any major alterations in the policy of the federal enforcement agencies. It is too early to tell whether the presidential elections in November 2016 will have any impact on US merger enforcement in FY 2017.

Footnotes

1 Ilene Knable Gotts is a partner at Wachtell, Lipton, Rosen & Katz.

2 The fiscal year is 1 October–30 September. The jurisdictional thresholds are inflation-adjusted each year. The current thresholds are available at https://www.ftc.gov/enforcement/premerger-notification-program/current-thresholds.

3 16 CFR part 802.

4 See Ilene Knable Gotts, ‘A Year of Robust Antitrust Enforcement’, Antitrust Report 1 (March 2016), for a more detailed discussion of enforcement activities, available at www.wlrk.com/webdocs/wlrknew/AttorneyPubs/WLRK.25177.16.pdf.

5 Press release, FTC, ‘FTC Issues Administrative Challenge to Polypore International, Inc.’s Consummated Acquisition of Microporous Products L.P. and Other Anticompetitive Conduct’ (10 September 2008), available at https://www.ftc.gov/news-events/press-releases/2008/09/ftc-issues-administrative-challenge-polypore-international-incs.

6 FTC v. Polypore International, Inc, 2010 WL 866178 (FTC, 1 March 2010) (initial decision), available at http://www.ftc.gov/enforcement/cases-proceedings/081-0131/polypore-international-inc-matter.

7 Polypore Int’l, Inc v. FTC, 688 F3d 1208 (11th Cir 2012).

8 Polypore Int’l, Inc v. FTC, 12-1016, cert denied (24 June 2013).

9 Promedica Health Sys, Inc v. FTC, 14-762, cert denied (4 May 2015).

10 Promedica Health Sys, Inc v. FTC, 749 F3d 559 (6th Cir 2014), available at www.ca6.uscourts.gov/opinions.pdf/14a0083p-06.pdf.

11 St Alphonsus Medical Center-Nampa Inc et al. v. St Luke’s Health System Ltd et al., No. 14-35173 (9th Cir 10 February 2015), aff’g FTC v. St Luke’s Health Sys, Ltd; Saltzer Med Grp, No. 13-CV-00116-BLW (D Idaho 24 January 2014).

12 Id. at p. 25.

13 Complaint, FTC v. Sysco Corp, No. 15-CV-00256 (DDC 20 February 2015), available at https://www.ftc.gov/system/files/documents/cases/150220syscousfcmplt.pdf.

14 Memorandum Order, FTC v. Sysco Corp, No. 15-CV-00256 (DDC 29 June 2015), available at https://www.ftc.gov/system/files/documents/cases/150623syscomemo.pdf.

15 Complaint, FTC v. Steris Corp, No. 15-CV-01080 (ED Ohio 4 June 2013), available at https://www.ftc.gov/system/files/documents/cases/150529sterissynergytro.pdf.

16 Memorandum Order, FTC v. Steris Corp, No. 15-CV-01080 (N.D. Ohio 24 September 2015), available at https://www.law360.com/dockets/download/56042a1d257d677a95000001?doc_url=https per cent3A per cent2F per cent2Fecf.ohnd.uscourts.gov per cent2Fdoc1 per cent2F14118002710&label=Case+Filing.

17 Press release, FTC, ‘FTC Challenges Proposed Merger of Two West Virginia Hospitals’ (6 November 2015), available at https://www.ftc.gov/news-events/press-releases/2015/11/ftc-challenges-proposed-merger-two-west-virginia-hospitals. The FTC also authorised staff to seek a preliminary injunction in federal court, if needed. The FTC did not immediately pursue the district court injunction because the merging hospitals are awaiting approvals from both the state healthcare authority and the Catholic Church; Press release, FTC, ‘FTC and Pennsylvania Office of Attorney General Challenge Penn State Hershey Medical Center’s Proposed Merger with PinnacleHealth System’ (8 December 2015), available at https://www.ftc.gov/news-events/press-releases/2015/12/ftc-pennsylvania-office-attorney-general-challenge-penn-state; press release, FTC, ‘FTC Challenges Proposed Merger of Two Chicago-area Hospital Systems’ (18 December 2015), available at https://www.ftc.gov/news-events/press-releases/2015/12/ftc-challenges-proposed-merger-two-chicago-area-hospital-systems. The Commission also authorised the staff to seek a preliminary injunction in the US District Court for the Northern District of Illinois. The Illinois Attorney General joined the FTC in opposing the merger; both filed the district court case challenge on 21 December 2015. FTC v. Advocate Health Care Network et al., No. 1:15-cv-11473 (ND Ill).

18 The FTC filed two suits: (1) in administrative court (see Complaint, In the Matter of Staples, Inc, Docket No. 9367 (FTC 7 December 2015), available at https://www.ftc.gov/system/files/documents/cases/151207staplesoffdepot_pt3cmpt.pdf); and (2) a preliminary injunction action in federal district court in the District of Columbia (see Complaint, FTC v. Staples, Inc, No. 1:15-cv-02115 (DDC 7 December 2015), available at http://res.cloudinary.com/gcr-usa/image/upload/v1449787115/FTCvStaplesfedctcomplaint_paudu1.pdf) (Staples Complaint). Pennsylvania and DC joined the FTC as plaintiffs in the federal challenge.

19 Memorandum Opinions FTC v. Staples, No. 1:15-cv-02115-EGS (DDC 17 May 2016), available at https://www.ftc.gov/system/files/documents/cases/051016staplesopinion.pdf. The FTC had also brought another hospital merger challenge in administrative court only. Complaint In re Cabell Huntington Hospital, FTC Dkt 9366 (filed 6 November 2015). Because the merging hospitals were still awaiting approvals from both state health officials and the Catholic Church, this matter is currently stayed.

20 Memorandum Order, FTC v. Penn State Hershey Medical Center, No. 1:15-cv-02362 (MD Pa 12 May 2016).

21 Press release, US Dep’t of Justice, ‘Department Issues Statement on the Abandonment of the National CineMedia/Screenvision Merger’ (16 March 2015), available at http://www.justice.gov/sites/default/files/atr/legacy/2015/03/17/312525.pdf.

22 Press release, NY Atty General, ‘AG Schneiderman and US Department of Justice Announce $7.5 Million Antitrust Settlement With NYC Tour Bus Operators’ (17 March 2015), available at http://www.ag.ny.gov/press-release/ag-schneiderman-and-us-department-justice-announce-75-million-antitrust-settlement-nyc.

23 On 7 December 2015 (four weeks into the trial), GE exercised its termination rights in the AB Electrolux acquisition, which triggered its receipt of a $175 million break-up fee. Press release, US Dep’t of Justice, ‘Electrolux and General Electric Abandon Anticompetitive Appliance Transaction After Four-Week Trial’ (7 December 2015), available at https://www.justice.gov/opa/pr/electrolux-and-general-electric-abandon-anticompetitive-appliance-transaction-after-four-week. See also press release, US Dep’t of Justice, ‘United Airlines Abandons Attempt to Enhance its Monopoly at Newark Liberty International Airport’ (6 April 2016), available at https://www.justice.gov/opa/pr/united-airlines-abandons-attempt-enhance-its-monopoly-newark-liberty-international-airport.

24 Over 16 months after the transaction was announced, on 6 April 2016, the DoJ filed suit to block Halliburton Co.’s (Halliburton) acquisition of Baker Hughes Inc (Baker Hughes). Halliburton, Baker Hughes, and Schlumberger are the ‘Big Three’ oil service companies in the United States. The transaction parties had offered extensive divestitures that the DoJ found inadequate to replicate competition. Complaint, United States v. Halliburton, No.16-cv-0023 (D Del 6 March 2016), available at https://www.justice.gov/opa/file/838651/download. On 1 May 2016, the parties terminated their merger agreement.

25 Complaint, United States v. Tribune Publishing Company, No. 16-CV-01822 (CD Cal 17 March 2016), ECF No. 1, available at http://assets.law360news.com/0773000/773149/tribunepercent20complaint.pdf.

26 Order, United States v. Tribune Publishing Company, No. 16-CV-01822 (CD Cal 18 March 2016), ECF No. 18, available at https://www.justice.gov/atr/file/833786/download.

27 Press release, US Dep’t of Justice, ‘Bankruptcy Court Approves Alternative Purchaser of Orange County Register and Riverside Press-Enterprise’ (21 March 2016), available at https://www.justice.gov/opa/pr/bankruptcy-court-approves-alternative-purchaser-orange-county-register-and-riverside-press.

28 Antitrust Procedures and Penalties Act, 15 USC Sections 16(b)-(h), Section 2(b).

29 See Ilene Knable Gotts, ‘Navigating Multijurisdictional Merger Reviews: Suggestions from a Practitioner’, Competition Law International, 149 (October 2013).

30 Press release, DoJ, ‘Department of Justice and Federal Trade Commission Issue Revised Horizontal Merger Guidelines’ (19 August 2010), available at https://www.justice.gov/opa/pr/2010/August/10-at-938.html.

31 15 USC Section 53(b).

32 Id.