FTC Proposes to Study Merger Remedies

The Federal Trade Commission is seeking public comments on a proposal to study the effectiveness of the Commission’s orders in merger cases where it required a divestiture or other remedy. The study would update and expand on the divestiture study the FTC issued in 1999, and should provide information on whether the orders met their remedial goals.

Each year, the Commission enforces the antitrust laws by challenging proposed or consummated mergers that it believes would be anticompetitive. Most of these challenges are resolved through a consent order, requiring the companies to divest certain assets and take other action to remedy the anticompetitive effects.

“Successful divestitures and other forms of relief are central to the Commission’s merger enforcement efforts,” said FTC Chairwoman Edith Ramirez. “Building on prior Commission efforts, the proposed study seeks to provide valuable information to ensure that our remedies continue achieving their primary goal – maintaining competition in the affected markets.”

The 1999 remedy study evaluated the divestitures the Commission ordered from 1990 to 1994, relying primarily on interviews with the buyers of the divested assets. As a result of that study, the Commission made several changes to its divestiture process: shortening the length of the divestiture period, requiring up-front buyers more frequently in cases in which less than an on-going business was divested, and requiring monitors more frequently.

The FTC’s proposed new study would focus on merger orders issued by the Commission between 2006 and 2012. It would evaluate merger orders that required divestiture, as well as those that instead required some non-structural relief to remedy anticompetitive effects. Overall, the FTC proposes to review 92 orders. 

The methodology will vary based on the agency’s experience with the particular industry.  For 53 orders in a variety of industries, the FTC proposes to use a case study method similar to that used in the earlier study. As it did previously, the Commission would interview buyers of divested assets. This time, the FTC would also interview significant competitors in each market, including the merged company, and customers. If no divestiture was ordered, the FTC proposes interviewing competitors and customers in each market. Although the FTC would seek voluntary interviews, it may rely on compulsory process if necessary.

Under its authority in Section 6(b) of the FTC Act, the Commission also proposes to issue orders to file special reports to obtain limited data from the buyers and their significant competitors in each market. The special report orders would request annual unit and dollar sales data for the products of concern to the Commission covering the period of the year of the divestiture, the three years prior to the divestiture, and the three years after the divestiture. The data would supplement and complement the interviews. 

For the 15 orders involving divestitures of supermarkets, drug stores, funeral homes, hospitals, and other clinics, the FTC proposes to send questionnaires to the buyers of divested assets. These questionnaires would focus on specific issues that have arisen in these industries. 

For the 24 orders involving divestitures in the pharmaceutical industry, the FTC proposes synthesizing the information it has from compliance reports, monitors, and publicly available information. The FTC does not propose seeking additional information from participants in these markets in order to analyze the remedial orders, absent information that suggests there are significant gaps in the information the FTC has been able to obtain.

Following the comment period, the FTC will request clearance from the Office of Management and Budget, in compliance with the Paperwork Reduction Act, to undertake the proposed study and publish a second request for comment.

More information about the proposed study, including the list of orders, can be found in Federal Register notice for this matter.

The Commission vote to approve and publish the Federal Register Notice seeking public comment on the proposed study was 5-0. The Commission is authorized to issue Orders to File Special Reports by Section 6(b) of the FTC Act. The FTC will publish the notice in the Federal Register shortly. Public comments on the proposal can be submitted electronically, and will be accepted until 60 days after the Notice is published. Written comments should be sent to:  FTC Office of the Secretary, 600 Pennsylvania Ave., N.W., Washington, DC 20580.

The FTC’s Bureau of Competition works with the Bureau of Economics to investigate alleged anticompetitive business practices and, when appropriate, recommends that the Commission take law enforcement action. To inform the Bureau about particular business practices, call 202-326-3300, send an e-mail to antitrust@ftc.gov, or write to the Office of Policy and Coordination, Bureau of Competition, Federal Trade Commission, 600 Pennsylvania Ave., Room CC-5422, Washington, DC 20580. To learn more about the Bureau of Competition, read Competition Counts. Like the FTC on Facebook, follow us on Twitter, and subscribe to press releases for the latest FTC news and resources.