December 1999

RHI AG/Global Industrial Technologies - RHI acquisition of Global allowed to proceed after RHI agreed to divest two refractories manufacturing plants and certain other assets being produced at a third plant to refractories producer, Resco Products, Inc. RHI and Global are the two leading North American manufacturers of refractories and would control significant shares of several refractory brick markets.

MacDermid/Polyfibron Technologies - MacDermid acquisition of Polyfibron allowed to proceed after divestiture of Polyfibron's North American liquid photopolymer business to Chemence, Inc. MacDermid and Polyfibron would further be required to terminate sheet photopolymer distribution agreements with Asahi and BASF. Prior to divestiture, MacDermid's acquisition of Polyfibron would result in a monopoly in the liquid photopolymer market in North America.

Hoechst AG/Rhone-Poulenc S.A. - Merger allowed to proceed if the combined entity, Aventis S.A., divests (1) its interest in Rhodia, a specialty chemicals subsidiary that produces cellulose acetate, to a level of 5 percent or less and (2) the assets relating to Rhone-Poulenc's direct thrombin inhibitor drug, Revasc. According to the Commission, there are 3 producers of cellulose acetate in the U.S. and significant barriers to entry in that market. In the direct thrombin inhibitor market, the merger would reduce potential competition and innovation competition and would increase barriers to entry.

Zions Bancorporation/First Security Corporation - Merger allowed to proceed after parties agree to divest 58 branches with $1.9 billion in deposits in Utah and 5 branches with $81 million in deposits in Idaho. The companies will also sell the commercial, consumer and agricultural loans associated with the divested branches. The proposed merger would create the 20th largest banking institution in the U.S. and the largest bank in Utah.

Bell Atlantic/Vodafone/GTE - DOJ filed a revised divestiture package to replace an arrangement filed in May 1999 relating to Bell Atlantic's merger with GTE. In September 1999, Bell Atlantic agreed to form a partnership with Vodafone. The Department's revised proposal would require divestitures in 34 additional markets, bringing the total divestiture to 96 markets in 15 states. Bell Atlantic is the 4th largest and GTE is the 5th largest wireless mobile telephone service provider in the U.S. Vodafone is the world's largest mobile telecommunications company.

Infinity Broadcasting/Outdoor Systems Inc. - $8.3 billion merger allowed to proceed if parties agree to divest certain out-of-home advertising displays in New York City, New Orleans and Phoenix. CBS Corporation owns 82 percent of Infinity.

November 1999

Exxon/Mobil - Merger allowed to proceed after parties agreed to the largest retail divestiture in Commission history. The settlement would require sale or assignment of supply agreements,

leases or franchises of approximately 2,431 retail gas stations in the Northeast, Mid-Atlantic, California, Texas and Guam. In addition to other asset divestitures, the settlement would require Exxon/Mobil to relinquish control of base oil in an amount equivalent to the amount refined by or under Mobil's control to prevent a combined 35 percent control of the base oil market in North America. The FTC alleged that the merger posed competitive problems in both "moderately concentrated" markets (California gasoline refining, marketing and retail sales of gasoline in the Northeast, Mid-Atlantic and Texas) and in "highly concentrated" markets (e.g., jet turbine oil). This settlement will stand as the Commission's most significant enforcement effort in moderately concentrated markets in many years according to Chairman Robert Pitofsky.

Precision Castparts/Wyman-Gordon - $721 million acquisition allowed to proceed after Precision Castparts agreed to divest titanium, large stainless steel and large nickel-based superalloy production assets. The complaint alleged that metals are not interchangeable in the manufacture of aerospace components and that Precision Castparts and Wyman-Gordon are two of only four viable suppliers of titanium aerospace cast components and large nickel-based superalloy aerospace cast components and two of only six suppliers of large stainless steel components.

Dominion Resources/Consolidated Natural Gas - $5.3 billion acquisition allowed to proceed after Dominion agreed to divest CNG's Virginia Natural Gas. Dominion accounted for more than 70% of all electric power generation capacity and CNG was the primary distributor of natural gas in southeastern Virginia.

Allied Signal/Honeywell - $16 billion merger allowed to proceed after the parties agreed to divest significant portions of their avionics business (traffic alert and collision avoidance systems, search and surveillance weather radar, reaction and momentum wheels and inertial systems). Transaction would have reduced the number of competitors to two or three in each business.

Alcoa/Golden Aluminum - $41 million acquisition allowed to proceed after Alcoa agreed to divest a lid stock (used to make the ends, tabs and lids of food and beverage cans) manufacturing facility. Alcoa had a share over 50% and Golden is one of only four other competitors in North America.

New Holland/Case - $4.3 billion acquisition allowed to proceed after New Holland agreed to sell its four-wheel-drive and large two-wheel-drive tractor businesses and Case agreed to sell its interest in Hay and Forage Industries, a joint venture that produces hay tools.

October 1999

VNU/Nielsen Media Research - Acquisition allowed to proceed after VNU agreed to divest its Competitive Media Reporting ("CMR") division. VNU and Nielsen are the only companies in the U.S. that provide advertising expenditure measurement services across multiple markets. VNU's CMR is the larger of the two with a 72% share.

El Paso Energy/Sonat - $6 billion merger allowed to proceed after El Paso agreed to divest Sea Robin Pipeline, a wholly-owned subsidiary of Sonat, and Sonat's one-third interest in Destin Pipeline. Sea Robin and Destin are large natural gas pipelines operating in the Gulf of Mexico off the coast of Louisiana. El Paso would also be required to sell its East Tennessee Natural Gas, which owns a natural gas pipeline system serving customers in eastern Tennessee and northern Georgia. The divestitures resolve competitive concerns in areas where the companies are direct and substantial competitors.

Compuware/Viasoft - DOJ files suit to block the $168 million cash tender offer, alleging that the merger would reduce competition in the US for mainframe testing/debugging software and for mainframe fault management software. Compuware has 60% and 80% of these markets, respectively, and Viasoft is the closest rival for the former and a new entrant in the latter.

Harsco/Pandrol Jackson - Harsco's $89 million acquisition of assets from Pandrol allowed to proceed after Harsco agrees to sell machinery and services used in railroad maintenance. The proposed merger would have reduced to one the number of manufacturers of switch and crossing and transit grinding equipment and related services.

September 1999

Ceridian - FTC reached proposed settlement with Ceridian and its subsidiary Comdata Holdings, the nation's largest provider of commercial credit cards known as "trucking fleet-cards," that addresses the anti-competitive effects resulting from Ceridian's consummated acquisitions of NTS in 1998 for $50 million and Trendar in 1995 for $14.2 million. At the time they were acquired, NTS was Comdata's most significant competitor in the fleet card market and Trendar owned the dominant point of sale system by which truck stops accept fleet card transactions. The settlement requires Ceridian to license other providers of these systems, to process transactions using its fleet cards and to license other fleet card issuers to process their cards through the company's Trendar system.

Octel/Oboadler - Acquisition allowed to proceed after Octel agreed to enter into a long-term supply agreement with Allchem Industries, Oboadler's U.S. distributor, to provide Allchem's requirements for lead antiknock compounds for resale in the U.S. Absent the long-term supply agreement, the transaction would have combined two of the three firms in the world that manufacture lead antiknock compounds.

Lamar Advertising/Chancellor Media - $2.6 billion acquisition allowed to proceed after Lamar agreed to sell outdoor advertising in 31 markets across 13 states.

Fleet/BankBoston - DOJ approved transaction after Fleet agreed to the divestiture of $13.2 billion in deposits in 306 branch offices.

Marathon Media/Citadel Communications Corp. - Transaction allowed to proceed after Marathon agreed to sell three radio stations in Billings, Montana. Transaction would have given Marathon control of nearly 65% of advertising revenue and of the operations of 9 of the 16 stations in the Billings radio market.

August 1999

Kroger/John C. Groub Company - Transaction allowed to proceed after the parties agree to divest three specified supermarkets. Absent these divestitures, two Kroger supermarkets directly compete with four Groub stores in Columbus and Madison, Indiana, and in these markets, the FTC charged, the acquisition would increase concentration, and, as a result, decrease competition.

FTC Report on Commission's Divestiture Process - The report evaluates the results of a study of divestiture orders entered between 1990 and 1994, including 35 orders in which asset divestitures--including licensing of intellectual property--were required. Based on interviews conducted in a case-study format (interviews of 37 out of 50 buyers, eight parties and two third parties, thus there was no wholesale interview of customers who might provide the best view), the report found that most divestitures are successful, while confirming the importance of the "up-front buyer" approach. The report notes the existence of an informational imbalance in which buyers that were not experienced in the industry underestimate the assistance they need from the parties (particularly with respect to transfers of know-how and technology). Recommendations include: (1) the use of auditor trustees to facilitate and monitor the transfer of the business, including technology; (2) crown jewel provisions; (3) consequential damages for failure to deliver supplies under interim supply contracts; (4) requiring the buyer to submit an acceptable business plan for the assets; (5) requiring the buyer to have final and executed contracts with third parties for any necessary inputs or services; (6) choosing experienced buyers; (7) choosing committed buyers; (8) choosing buyers of sufficient size; (9) granting the buyer rights to all related technology; (10) granting the buyer a right to technical assistance; (11) allowing the buyer to observe the respondent's facilities in operation; and (12) granting the buyer the right to seek to hire selected people form the merged firm who have important knowledge.

AK Steel/Armco - Transaction allowed to proceed after AK Steel agreed to license patents relating to the manufacture and sale of aluminized stainless steel. Transaction would have combined the only U.S. producer of aluminized 409 stainless steel with the only other U.S. company that had rights to make and sell the product.

James and Thomas Ingstad/six radio stations from KFGO - Ingstads required to divest five radio stations. Transaction would have given the Ingstads control of nearly 93% of advertising revenue and of operations of 11 of the 14 stations in the Fargo-Moorhead radio market.

July 1999

Smith International and Schlumberger - DOJ filed its first criminal antitrust merger contempt case in more than 15 years against the companies for violating a 1994 Final Judgment by forming a drilling fluids joint venture prohibited thereunder.

Allied Waste/Browning-Ferris - $9.4 billion acquisition allowed to proceed after Allied Waste agreed to divest waste collection and disposal operations in 13 states, covering 18 metropolitan areas. In most of the markets, the combination would have left only two or three major competitors.

Abry Broadcast/Bastet Broadcasting - Parties abandoned transaction in the face of a DOJ challenge. The two companies owned the NBC and CBS affiliates in the Wilkes-Barre/Scranton, Pennsylvania market and had entered into a Joint Sales Agreement which would have allowed one station to sell advertising time for both stations.

Cargill/Continental Grain's Commodity Marketing Group - Transaction allowed to proceed after Cargill agreed to divest grain and soybean facilities in various states.

Consolidated Edison/Orange & Rockland Utilities - $800 million acquisition allowed to proceed after the parties agreed to sell all of Orange & Rockland's electric generating plants and a plant co-owned by the companies. Without the divestitures, Con Ed would have owned fifty percent or more of the capacity of electric generation plants available to supply electricity in eastern New York during peak periods.

June 1999

Amendment of Formal Interpretation 15 of the HSR Act Regarding LLC's - Acquisition of an additional business by an existing LLC, in which the percent membership interest of at least one member changes will be treated as a new formation of the LLC. If the interests do not change the acquisition is treated as an acquisition by the LLC (or its UPE(s)). Acquisition of assets not constituting a business are always viewed as acquisitions of the assets by the LLC (or its UPE(s).

Shaw's Supermarkets/Star Markets - Acquisition allowed to proceed after Shaw's agreed to divest 10 designated supermarkets in eight communities. Absent these divestitures, the acquisition would have lessened competition in these eight markets.

Albertson's/American Food Stores - Acquisition allowed to proceed after the parties agreed to divest 144 supermarkets and five supermarket sites in 57 markets. Absent the divestitures, each of the local markets at issue would be highly concentrated, as defined by the Commission's Merger Guidelines.

Aetna/Prudential Healthcare - Transaction allowed to proceed after Aetna agreed to sell its NYLCare HMO businesses in Houston and Dallas-Fort Worth, Texas. The proposed transaction would have made Aetna the dominant provider of HMO and HMO-based point of service plans in Houston and Dallas, with 63% and 42%, respectively.

May 1999

Kroger/Fred Meyer - Acquisition allowed to proceed after the parties agree to divest eight specific supermarkets in seven communities. Absent these divestitures, the acquisition would increase concentration and, as a result, decrease competition in these seven markets.

Provident/UNUM - Merger allowed to proceed after Provident agreed to continue contributing individual disability claims data to the Society of Actuaries and/or the NAIC (or NAIC's designee) for actuarial tables, studies and reports, subject to contain terms and conditions intended to protect the confidentiality of UNUMProvident's data before and after it is aggregated with the data of other industry participants. Absent the provision of this data, the FTC alleged that the proposed merger would lessen the incentive for the combined firm to continue to submit data to the independent entities such as the Society of Actuaries and other industry groups designated to conduct industry-wide solicitations by the National Association of Insurance Commissioners ("NAIC"), which solicit, aggregate and publish industry-wide actuarial tables, studies and reports. Lack of access to this data would make it difficult for competing insurers to accurately predict future claims in order to select risks and price policies.

SNIA/COBE Cardiovascular - Acquisition allowed to proceed after SNIA agreed to divest COBE's heart-lung machine business to Baxter. The proposed settlement would also require SNIA to provide assistance to Baxter to enable it to compete effectively in the market for heart-lung machines. Such assistance would include SNIA "contract manufacturing" heart-lung machines for a limited time period to allow Baxter to establish its own manufacturing processes and to obtain its own regulatory approvals to manufacture and sell heart-lung machines. Absent this divestiture, the acquisition would have lessened competition and reduced innovation.

Quexco/GNB - Acquisition allowed to proceed after Quexco agreed to divest GNB's secondary smelter to Gopher Resources, Inc, under the terms of a contract that currently exists between them, or to another Commission-approved buyer. Absent this divestiture, the acquisition would have combined the only two operators of lead smelters in California and the only two firms that perform lead recycling there.

Lamar Advertising/Vivid's assets - $22.5 million acquisition of Vivid allowed to proceed after the companies agreed that Vivid would retain certain billboards in Walworth County, Wisconsin and Winnebago County, Illinois.

Florida Rock Industries/Harper Bros. - $87.5 million merger allowed to proceed after companies agree to sell a quarry and sand mine in Southwest Florida. Without the divestitures, Florida Rock would have become the dominant aggregate and silica sand supplier in Southwest Florida.

Computer Associates/Platinum Technology - Transaction allowed to proceed provided that Computer Associates sells six Platinum mainframe systems management software products and related assets. The merger would have reduced competition in five mainframe systems management product markets: tape management, job scheduling and rerun and change management software for the OS/390 operating system, and job scheduling and rerun and automated operations for the VSE operating systems. The six products and related assets participated in these five markets. Platinum is also required to complete its prior sale of its family of job accounting and capacity planning products or include them in the divestiture package.

Chittenden/Vermont Financial Services - Merger cleared after parties agreed to divest 17 branch offices and one ATM in eight banking markets in Vermont with deposits totaling about $480 million.

Bell Atlantic/GTE - Merger cleared after parties agreed to a consent decree requiring the two firms to sell one of their two interests in overlapping wireless telephone systems in 65 markets in 9 states.

Fox Paine/Century Telephone/ATU Communications - Transactions allowed to proceed after Fox Paine agrees to restructure its transaction with Century so as not to acquire a cellular license that overlaps with ATU.

April 1999

Rohm & Haas/Morton - Acquisition allowed to proceed after Rohm & Haas agreed to divest Morton's worldwide water-based floor care polymers business to GenCorp, which currently produces water-based polymers for use in the graphics arts industry, a technology and production area closely related to water-based floor care polymers. Rohm & Haas also agreed to provide a transitional supply of products to GenCorp. Absent this divestiture, the acquisition would have combined two participants with significant shares in the highly concentrated water-based floor care polymers market.

Suiza Foods/Broughton Foods - DOJ settled lawsuit seeking to block acquisition of Broughton after the parties agreed to sell the entire operation of Southern Belle Dairy. Without this divestiture, the transaction would have reduced the number of school milk bidders from three to two in more than thirty school districts and from two to one in more than twenty districts.

Citadel/Triathlon Broadcasting - DOJ challenged a Joint Sales Agreement ("JSA") between the two companies' radio stations in Colorado Springs, as well as Triathlon's acquisition of three

radio stations in Spokane. The stations covered by the JSA represented 58% of the Colorado Springs radio market as measured by advertising revenues.

Imetal/English China Clays - $1.24 billion cash tender offer allowed to go forward after companies agreed to divestitures. Imetal and ECC are two of only five producers of water-washed kaolin and calcined kaolin, are the dominant producers of fused silica in the U.S., and through Imetal's interest in a joint venture are the only two suppliers of ground calcium carbonate to paper mills in the Southeastern U.S. The divestitures resolve the concerns in these markets.

Clear Channel/Jacor Communications - $3.8 billion acquisition allowed to proceed after the parties agreed to sell 18 radio stations in 4 cities.

Capstar Broadcasting/Triathlon Broadcasting - $190 million acquisition allowed to proceed after Capstar agreed to sell five radio stations in Wichita, Kansas. Without the divestitures Capstar could have controlled more than 45% of the Wichita radio advertising market. The divestitures reduce share to less than 40%.

Input/Output/Laitram - Each party agreed to pay a $225,000 civil penalty to settle charges that they violated premerger reporting requirements by not observing the required waiting period. The premature steps included (1) circulating an internal memo announcing the reorganization of Input/Output and assigning Laitram's DigiCOURSE officers to positions within Input/Output, (2) moving at least three individuals from DigiCOURSE's Houston sales office to Input/Output's offices in Stafford, Texas and (3) consulting with the president of DigiCOURSE by Input/Output officers to review and comment upon the possible acquisition by Input/Output of another marine equipment company.

Allied Waste/Browning-Ferris - Proposed $210 million asset swap allowed to proceed after the parties agreed to sell certain waste collection routes in the St. Louis metropolitan area. Without this divestiture, the exchange would have reduced from three to two the number of major competitors providing small container commercial hauling services in the St. Louis market.

March 1999

Zeneca Group/Astra - Merger allowed to proceed after the parties agreed that Zeneca would transfer and surrender all of its rights and assets relating to levobupivacaine, a long-acting local anesthetic, to Chiroscience, the developer of levobupivacaine. Zeneca had an agreement with Chiroscience to market and assist in the development of levobupivacaine. Astra is one of only two companies with FDA approval to manufacture and sell long-acting local anesthetic. Expected to be introduced in the U.S. in 1999, levobupivacaine is the only potential new competition in the long-acting local anesthetic market for the foreseeable future. Thus, absent the transfer, the merger would have eliminated an actual potential competitor in the U.S. market for long-acting local anesthetics.

CMS Energy/Duke Energy - $2.2 billion acquisition of two natural gas pipelines from subsidiaries of Duke Energy allowed to proceed after CMS agreed to "loan" natural gas from its own system to shippers on third-party pipelines if its interconnect capacity with those pipelines falls below historical levels. Absent this agreement, CMS, which provides natural gas over these and three other pipelines to residential and industrial consumers in 54 counties in the lower peninsula of Michigan, would have the incentive to limit its use of the other three pipelines and thereby raise transport costs and the ultimate price charged to consumers.

Monier Lifetile - Monier will sell roofing tile production facilities in Arizona, California and Florida to CRH to settle charges that its formation as a joint venture between Boral and LaFarge violated antitrust laws by combining the two largest producers of concrete roofing tile in the U.S. The formation was not reportable under the HSR Act because it was formed as a limited liability corporation. As of March 1, 1999, such a joint venture would be reportable since it combines existing businesses and one of the members of the LLC had an interest of 50% or more.

Blackstone Capital Partners II Merchant Banking Fund - Agreed to pay $2,785,000 to settle charges that the company failed to produce a key 4(c) document along with its premerger notification and report form for federal antitrust authorities before undertaking an acquisition subject to premerger review in 1996.

SBC/Ameritech/Comcast Cellular - SBC's acquisition of Ameritech and Comcast Cellular allowed to proceed after SBC and Ameritech agree to divest one of the two cellular telephone systems in each of 17 markets in Illinois, Indiana and Missouri.

Central Parking/Allright Holdings - $585 million merger allowed to proceed after the companies agreed to sell or terminate their interests in certain off-street parking facilities in 18 cities in 10 states.

America Online/Netscape Merger and America Online/Sun Microsystems Strategic Alliance - DOJ allowed both transactions to proceed, concluding that "neither the merger nor the alliance violate the antitrust laws."

Signature Flight Support/AMR Combs - Acquisition allowed to proceed as long as Signature agrees to sell flight support businesses at Palm Springs, Bradley International (Hartford, CT) and Denver Centennial Airports. At Palm Springs and Bradley, the companies are the only two fixed base operators, and at Denver, Signature had agreed to become the operator of a flight support facility that would have put it in direct competition with Combs.

February 1999

HSR Formal Interpretation of Rules Concerning Limited Liability Companies - Effective March 1, 1999, the formation of an LLC is reportable, assuming that the HSR size-of-person and size-of-

transaction requirements are met, if two or more pre-existing, separately controlled businesses will be contributed and at least one of the members will control the LLC (i.e., have an interest entitling it to 50 percent of the profits or 50% of the assets upon dissolution).

January 1999

SCI/ECI - Acquisition allowed to proceed after SCI agreed to divest seven funeral homes in six geographic markets and twelve cemeteries in eight geographic markets. Absent these divestitures, the transaction allegedly would have eliminated substantial existing competition between SCI and ECI and would have lead to higher prices or reduced services to customers.

ABB/Elsag Bailey Process Automation - $1.1 billion acquisition allowed to proceed after ABB agreed to divest Elsag's Analytical Division of its Applied Automation subsidiary. Absent this divestiture, the acquisition would have combined the world's two leading suppliers (with a combined share of almost 70%) of process gas chromatographs, which are analytical instruments used to measure the chemical composition of a gas or a liquid by separating a sample into its individual components. ABB is also one of the world's leading suppliers of process mass spectrometers, which are analytical instruments used in process manufacturing applications to determine the chemical composition of a gas or vapor stream through a complex ionization, separation and measurement procedure. While Elsag does not currently manufacture process mass spectrometers, its Applied Automation subsidiary is researching and developing one that it plans to begin to manufacture and sell in 1999.

Citicorp Services/Transactive - Citicorp abandoned its proposed acquisition of Transactive's electronic benefit transfer system business in the face of DOJ challenge. Press Release.

Media One Group/Rambaldo Communications - Media One abandoned its efforts to purchase two radio stations from Rambaldo in the face of DOJ challenge. If the deal had been successful, Media One would have controlled well over 50 percent of the radio advertising dollars in the Erie market.

Formica/International Paper - International Paper abandoned its plan to sell its decorative high pressure laminate ("HPL") business to Formica in the face of DOJ challenge. The transaction would have reduced the number of domestic HPL manufacturers from four to three, combining the second and third largest domestic suppliers.

December 2000

Allied Waste/Superior Services - The Department of Justice approved the exchange of waste collection and disposal assets between Allied Waste and Superior Services, Inc., after the companies agreed to divest waste collection assets in Milwaukee, Wisconsin and Mansfield, Ohio. The Department also required Superior to abandon its acquisition of Allied's landfill in Leeper, Pennsylvania. The companies were two of only three credible competitors providing

waste collection services in Milwaukee, and were the only two significant competitors in Mansfield. The companies were also the only two operators of landfills in Leeper.

El Paso/PG&E - The FTC approved El Paso Energy's acquisition of two Pacific Gas & Electric ("PG&E") subsidiaries, after El Paso and PG&E agreed to divest certain pipeline assets in Texas, and El Paso agreed not to acquire specified pipeline assets without prior FTC approval for a 10-year period. El Paso is one of the largest integrated natural gas companies in the United States. PG&E provides energy services throughout North America.

Computer Sciences/Mynd - The FTC allowed Computer Sciences Corporation ("CSC") to proceed with its $565 million acquisition of Mynd Corp., after CSC agreed to divest Mynd's claims assessment system. As originally proposed, the FTC contended that the acquisition would have eliminated direct competition between the only two significant competitors in the market for claims assessment systems.

Valspar/Lilly Industries - The FTC permitted Valspar's acquisition of Lilly Industries to proceed after Valspar agreed to divest its mirror coatings business. Without the divestiture, the transaction was alleged to eliminate direct competition between the two leading suppliers of mirror solutions, and two of the three largest suppliers of mirror backing paint in the United States.

Glaxo Wellcome/SmithKline: The FTC approved the $182 billion merger between Glaxo Wellcome and SmithKline Beecham after the companies agreed to divest or assign assets in nine pharmaceutical product markets. The merger created the world's largest pharmaceutical company.

AOL/Time Warner - The FTC allowed the $106 billion merger between America Online ("AOL") and Time Warner, after the companies agreed to certain conditions requiring that the merged entity open its cable system to competing Internet service providers. AOL was the largest Internet service provider in the nation, while Time Warner was one of the world's largest media conglomerates.

Miller/Vulcan/Chevron - The Department of Justice required Miller to grant licenses under five patents used in the design of towing and recovery vehicles to resolve anticompetitive concerns caused by Miller's past acquisitions of two competitors, Vulcan Equipment Inc., in 1996, and Chevron Inc., in 1997. The Department did not learn about the acquisitions until after they had been completed because their dollar values fell below the statutory threshold amount of the Hart-Scott-Rodino Act.

Swedish Match/National Tobacco - The FTC successfully enjoined the acquisition by Swedish Match of the loose leaf chewing tobacco business of National Tobacco Company, L.P. In granting the FTC's motion for a preliminary injunction, the district court concluded that the FTC had established that there was a reasonable probability that the merger would substantially

lessen competition in the loose leaf tobacco market. Swedish Match and National Tobacco were the first and third largest producers of loose leaf tobacco in the United States.

Allied Waste/Republic Services - The Department of Justice approved the exchange of waste collection and disposal assets between Allied Waste and Republic Services Inc., provided that the companies divest waste collection assets and agree to contract modifications affecting fifteen metropolitan markets in Florida, Georgia, Indiana, Kentucky, New York, Ohio, Tennessee and Virginia. Allied and Republic are the second and third largest waste hauling and disposal companies in the United States.

SBC/BellSouth - The Department of Justice permitted the merger of SBC Communications' (formerly Southwestern Bell Corporation) and BellSouth Corporation's wireless phone businesses to proceed after the companies agreed to divest certain wireless system assets in sixteen different metropolitan markets including Los Angeles, Indianapolis and New Orleans. The merger of the two wireless businesses created the second largest wireless carrier in the United States, after Verizon Wireless Inc.

November 2000

Dairy Farmers/SODIAAL - The Department of Justice settled its lawsuit against Dairy Farmers of America Inc. and SODIAAL North America Corporation, and approved the merger of the two branded butter sales competitors after the companies agreed to restructure the transaction. The primary purpose of the settlement was to bar Dairy Farmers of America from sharing sensitive market and pricing information with Land O' Lakes, Dairy's sole remaining competitor after the merger in the sale of branded stick and branded whipped butter in the Philadelphia and New York areas.

Novartis/AstraZeneca - The FTC permitted the combination of Novartis' and AstraZeneca's agricultural chemical businesses after Novartis agreed to divest its worldwide foliar fungicide business and AstraZeneca agreed to divest its worldwide corn herbicide business. Foliar fungicide and corn herbicide are used in the farming of corn, cereals, peanuts, potatoes, rice, turf and vegetables. Novartis and AstraZeneca are the two leading competitors in the production of corn herbicides, and collectively account for approximately 40% of all fungicide sales.

L'Oreal/Carson - The Department of Justice allowed L'Oreal's acquisition of Carson Inc. to proceed, after the companies agreed to divest two retail brands of women's hair relaxers. As originally proposed, the acquisition would have resulted in L'Oreal controlling.

October 2000

JDS Uniphase/E-Tek - The Department of Justice approved the merger of JDS Uniphase Corporation and E-Tek Dynamics Inc., after the companies agreed to divest certain contract rights to purchase thin film filters, a critical component to fiber optic strands. As originally

proposed, the merger would have resulted in the two companies controlling approximately 80% of the world's output of thin film filters.

Tyco/Mallinckrodt - The FTC settled its lawsuit against Tyco International, allowing the company to proceed with its $4.2 billion acquisition of Mallinckrodt after it agreed to divest its endotracheal tube business. As originally proposed, the FTC belived the transaction would have provided Tyco with a combined market share of 84% in the endotracheal tube market.

Manheim/ADT - The FTC approved Manheim Auction's acquisition of ADT Automotive Holdings after Manheim agreed to divest nine auctions in seven geographic markets. Manheim and ADT are the first and third leading operators of wholesale motor vehicle auctions in the United States.

September 2000

Boeing/Hughes - The FTC permitted Boeing to proceed with its $3.75 billion acquisition of Hughes Space and Communications, after Boeing agreed to a consent agreement prohibiting it from providing technical assistance to a classified defense program and requiring that it construct a firewall between two of its divisions to deny each access to the other's nonpublic proprietary information.

Agrium/Unocal - The FTC allowed Agrium to proceed with its acquisition of Union Oil Company of California ("Unocal"), after Agrium agreed to divest certain nitrogen fertilizer assets that served Oregon, Idaho and Washington. Agrium is one of the world's largest producers of nitrogen fertilizers, and together with Unocal, is one of the two leading sellers of the most popular nitrogen fertilizers in the Northwest.

Pfizer/Warner-Lambert - The FTC approved the $90 billion merger between Pfizer and Warner-Lambert, after the companies agreed to divest assets in four pharmaceutical product markets. At the time, the merger created the largest pharmaceutical company in the world in terms of sales.

August 2000

Clear Channel/AMFM - The Department of Justice allowed the proposed $23.8 billion merger of Clear Channel Communications Inc. and AMFM Inc. to proceed, provided that the two companies divest AMFM's partial ownership interest in Lamar Advertising Company and 14 radio stations in 5 different markets. This was in addition to the companies' July 20, 2000, agreement with the Department, where the companies committed to divest 99 radio stations in 27 markets, the largest radio divestiture in history. This was the largest radio merger challenged by the Department in its history.

July 2000

Worldcom/Sprint - Worldcom Inc. and Sprint Corp. abandoned their proposed merger after the Department of Justice sought a preliminary injunction to enjoin the merger in June 2000. The Department alleged that the proposed merger would have substantially reduced competition in the residential long distance telephone markets and several other telecommunications markets. Worldcom and Sprint are two of the three largest U.S. telecommunications companies. At the time, this was the largest merger challenged in the Department's history.

March 2000

The Earthgrains Company/Metz Holdings Inc. - $625 million merger allowed to proceed after parties agree to divest Earthgrains' Colonial brand and Metz's Taystee brand of white pan bread in Iowa, Kansas, Missouri and Illinois. As proposed, the merger would have reduced the number of white pan bread competitors from 3 to 2 in Kansas City and Omaha and from 4 to 3 in Des Moines.

February 2000

Miller Industries/Vulcan Equipment Inc./Chevron Inc. - DOJ filed a civil lawsuit to challenge Miller's acquisitions of Vulcan and Chevron. The complaint alleged the acquisitions lessened competition in the design, manufacture and sale of light-duty tow trucks and car carriers. The Department filed a proposed consent decree with the complaint which would require Miller to grant licenses under 5 key patents of important technology used in towing and recovery vehicles to competitors. Miller Industries is the nation's largest supplier of light-duty tow trucks and light-duty car carriers. Neither of the Vulcan or Chevron acquisitions met the HSR statutory threshold, so the Department did not learn about the transactions until after they were completed.

January 2000

Centura Banks/Triangle Bancorp - Merger allowed to proceed after Centura agreed to sell $315 million in deposits in 18 branches in North Carolina. The Department was concerned that the proposed merger would have reduced competition for commercial lending services.

Compuware/Viasoft - Proposed merger abandoned. The Department filed a civil lawsuit in October 1999 to block the proposed merger because it would have reduced competition significantly in the testing and debugging and fault management software markets. The trial was scheduled to begin April 3, 2000.

December 2001

Nestle/Ralston Purina - The FTC reached a consent agreement with Nestle Holdings, Inc. regarding its proposed acquisition of Ralston Purina Co., the world's leading producer of dry pet foods. The FTC identified the companies as having an overlap in the national market for dry cat food, a "moderately concentrated" market, and determined that the combined firm would have nearly a 45% market share. The agreement required the divestiture of Ralston's Meow Mix (the best-selling dry cat food brand) and Alley Cat brands, along with associated intellectual property and know-how, to J.W. Childs Equity Partners II, L.P., an investment firm. Further, the companies were required to relinquish all international trademarks related to the brands.

INA/FAG - The FTC reached a consent agreement with two German corporations, INA-Holding Schaeffler KG and FAG Kugelfischer Georg Schafer AG regarding INA's proposed acquisition of FAG that would avoid anticompetitive effects in the market for cartridge ball screw support bearings (CBSSB). The FTC claimed the acquisition would have given INA a worldwide monopoly in the CBSSB market. To avoid such a result, INA was required to divest FAG's CBSSB business to Aktiebolaget SKF, the largest supplier of ball and roller bearings in the world, and was to provide prior notice to the FTC before entering into any North American joint ventures with NTN Corporation of Japan. The FTC believed entry would not be timely but that SKF's expertise was sufficient to allow it to become a viable competitor to the merged entity.

November 2001

SBC/Ameritech, S. Austin Coalition Cmty. Council v. SBC Communs., Inc., 284 F.3d 1168 (7th Cir. Nov. 14, 2001) - Customers of SBC Communications and Ameritech, two of the Baby Bells created by the breakup of AT&T in 1983, filed a private antitrust suit to enjoin the two telephone companies' merger. The Seventh Circuit dismissed the suit, finding that the merger of the two companies fell within the common-carrier exception of §7.

SunGard/Comdisco - The Department of Justice filed a civil lawsuit seeking a preliminary injunction to block the merger of SunGard Data Systems, Inc. and Comdisco, Inc., the largest competitors, along with IBM, in the computer disaster recovery services market. The district court denied the government its injunctive relief, finding that the Department had failed to meet its burden of establishing a relevant product market.

Hearst/First DataBank - The FTC agreed to a settlement of a permanent injunction action with The Hearst Corporation. The FTC contended that Hearst had failed to provide documents required by premerger notification law and had consummated a merger that monopolized the market for integrated drug information databases. Under the settlement, Hearst was required to divest the Medi-Span business to Lippincott Williams & Wilkins and to disgorge $19 million in profits.

October 2001

Signature Flight/AMR Combs - The Department of Justice allowed Signature to proceed with is acquisition of AMR Combs Inc., provided that Signature divest flight support businesses at airports in Hartford, Connecticut, and Denver, Colorado. Signature and AMR were the only two fixed base flight support operators at the two airports.

Thomson/Harcourt - The Department of Justice permitted Thomson Corporation's acquisition of certain higher education and professional services assets belonging to Harcourt General Inc., after the companies agreed to divest textbooks used in 38 different college courses and Assessment Systems Inc., a computer-based testing services business. Thomson already owned Prometric Inc., which, along with Assessment Systems, operated the two largest national networks of computer-based testing facilities. Thomson and Harcourt are two of the world's largest publishing companies, with publishing revenues exceeding $2.1 and $1.8 billion respectively in 2000.

General Mills/Pillsbury - The FTC announced that it had voted 2-2 on motions to direct staff to formulate a proposed consent agreement incorporating the settlement terms offered by the parties and to authorize staff to seek a preliminary injunction. Consequently, no action was taken and the proposed transaction was allowed to proceed. The parties did commit to the divestiture of Pillsbury's baking mixes, ready-to-spread frosting, flour products, pancake and potato mixes, including five product lines (Pet Milk, Farmhouse Foods, Softasilk Flour, Red Band Flour and La Pina Flour), to Multifoods.

September 2001

Mesto/Svedala - The FTC negotiated a settlement with Metso Oyj regarding its proposed acquisition of Svedala Industri AB. The companies are the two largest suppliers of rock processing equipment in the world and are based in Finland and Sweden, respectively. The FTC was concerned about anticompetitive effects in four related, global markets: primary gyratory crushers, jaw crushers, cone crushers, and grinding mills. The FTC believed that these markets were "highly concentrated" and that entry was unlikely. Accordingly, the settlement required the combined firm to divest Metso's global primary gyratory crusher and grinding mill businesses and Svedala's global jaw crusher and cone crusher businesses. The crusher businesses were divested to Sandvik AB, a large Swedish corporation engaged in the worldwide drilling and excavation equipment business, while the grinding mill business was divested to Outokumpu, a large, Finnish metals corporation.

Chevron/Texaco - The FTC reached a consent agreement with Chevron Corp. and Texaco Inc. in their bid to merge. The companies are two of the world's largest integrated oil companies and the FTC's concerns spanned the related markets of gasoline marketing, the refining and bulk supply of both national RFG II and California CARB gasoline, the terminaling of gasoline, pipeline transportation of crude oil, the fractionation of raw mix into natural gas, and the marketing and distribution of aviation fuel in various regions within the United States. The consent agreement required Texaco to divest its interest in two joint ventures, Equilon Enterprises, LLC and Motiva Enterprises, LLC, that together controlled eight refineries, roughly

100 terminals and various pipelines. Further, Texaco was required to divest its interest in an additional pipeline system and a fractioning plant in Texas.

August 2001

Pepsi/Quaker Oats - The FTC announced that it had met in closed session to consider an enforcement action to authorize staff to seek a preliminary injunction against PepsiCo's proposed acquisition of the Quaker Oats Company. The Commission's 2-2 vote resulted in no action being taken. Subsequently, the Commission voted 4-0 to close the investigation. Each Commissioner issued a statement explaining his/her vote.

July 2001

First Union/Wachovia - The Department of Justice allowed the merger between First Union Corporation and Wachovia Corporation to proceed after the two companies agreed to divest 38 branch offices in Virginia, North Carolina, South Carolina and Georgia.

Alcoa/Reynolds - The Department of Justice approved the merger of Alcoa and Reynolds Metal Co., the first and third largest aluminum companies in the world, after Alcoa agreed to divest a 25% interest in Reynolds' aluminum smelter facility in Washington, along with all of Reynolds' interests in three aluminum refineries in Australia, Germany and Texas.

June 2001

Worldcom/Intermedia - The Department of Justice allowed the merger of Worldcom and Intermedia Communications Inc. to proceed after the companies agreed to divest all of Intermedia's business operations and assets except its controlling interest in Digex Inc. In effect, the divestiture sold Intermedia's Internet backbone network, which provided integrated local and long distance voice and data telecommunications services in metropolitan areas across the United States. Worldcom owns and operates the largest Internet backbone network in the world.

Lafarge/Blue Circle - The FTC accepted a proposed consent order offered by the parties, two leaders in the North American cement and lime markets. The companies, which combined became the largest worldwide cement company, were required to divest the Blue Circle cement businesses serving the Great Lakes Region and the Syracuse, New York area as well as the Blue Circle lime business serving the southeast United states. The FTC contended that the three markets were already "highly concentrated" and that the combined entity would have 47%, 68% and 85% market share, respectively. The divestitures were developed in coordination with the Canadian Competition Bureau, which also reviewed the merger.

April 2001

News Corporation/Chris-Craft - The Department of Justice permitted the merger of The News Corp. and Chris-Craft Industries Inc., after the two companies agreed to divest a Salt Lake City television station. As originally proposed, the merger would have resulted in News Corp. owning two of the top four broadcast television stations in the Salt Lake City market. News Corp. is one of the world's largest entertainment corporations, with revenues of approximately $11 billion in 2000.

Novell/WordPerfect” Lantec, Inc. v. Novell, Inc., 146 F.Supp.2d 1140 (D. Utah April 9, 2001) - Lantec and LanCompany Informatica LTDA filed a private antitrust suit that, inter alia, challenged Novell's acquisition of WordPerfect in 1994. At the close of the plaintiffs' evidence, the district court granted Novell's motion for judgment as a matter of law. With respect to the plaintiffs' §7 claims, the court found that the plaintiffs had failed to meet their burden of establishing a relevant market.

Heinz/Beech-Nut - The FTC filed a civil lawsuit to enjoin the merger of Heinz and Beech-Nut, the second and third largest manufacturers of jarred baby food. The D.C. Circuit reversed the lower court decision denying preliminary injunctive relief, and enjoined the merger. The court found that the FTC had shown that there was a reasonable probability that the merger would substantially lessen competition in the jarred baby food market, and that the defendants failed to prove their efficiencies defense to rebut that showing.

"Volvo/Renault" United States v. Aktiebolaget Volvo, 2001 U.S. Dist. LEXIS 11445 (D.D.C. April 30, 2001) - The Department of Justice allowed Volvo to proceed with its acquisition of Renault V.I., provided that Volvo divest its line of heavy duty low cab over engine ("LCOE") trucks. Together, the companies accounted for approximately 86% of LCOE truck sales in the United States.

March 2001

MichCon/Detroit Edison - The FTC negotiated a settlement permitting the merger of Michigan Consolidated Gas Company, a natural gas utility, and The Detroit Edison Company, a public utility engaged in the generation, purchase, transmission and distribution of electricity. The FTC feared the combined entity would have monopoly control over the distribution of both electricity and natural gas, the only likely alternative source of energy for cogeneration and distributed generation customers, in a five county area of southeastern Michigan. The FTC permitted the merger but required the combined entity to grant an easement over its local natural gas distribution system to Exelon Energy, an energy company that markets natural gas to buyers elsewhere in Michigan. Further, the combined entity must allow its customers in the affected area to terminate their contracts without cost or penalty so as to allow them to switch to services provided by Exelon.

February 2001

Dow/Union Carbide - The FTC cleared the merger subject to two conditions: 1) that Dow divest intellectual property relating to linear low-density polyethylene ("LLDPE"), an ingredient in plastic products such as trash bags, stretch film and sealable food pouches, to BP Amoco; and 2) that Dow divest its ethyleneamines, ethanolamines and methyldiethanolamine-based gas treating products to Huntsman and Ineos. These divestitures were designed to maintain both competition within the LLDPE market and to facilitate competition from alternative technologies. Dow and Union Carbide were the only two domestic producers of ethyleneamines and had a combined 60% market shares in both ethanolamines and methyldiethanolamine-based gas treating products.

Phillip Morris/Nabisco - The FTC cleared the combination of Phillip Morris' and Nabisco's food business. According to the Commission's complaint, the proposed merger would violate Section 5 of the FTC Act and Section 7 of the Clayton Act by reducing competition in five already highly- concentrated food product markets. In order to address competitive concerns, the parties have agreed to divest all of Nabisco's dry-mix gelatin, dry-mix pudding, no-bake dessert, and baking powder assets to The Jel Sert Company, and Nabisco's intense mints assets to Hershey Foods Corporation.

January 2001

Republic/Allied Waste - The Department of Justice allowed Republic to proceed with its acquisition of Allied Waste Industries Inc.'s Akron/Canton, Ohio, commercial waste hauling assets, after Republic agreed to divest its small container commercial waste collection assets serving the same area. The merger, as originally proposed, would have reduced the number of major competitors in the Akron/Canton waste collection market to three.

Entergy/Koch - The FTC permitted the acquisition of Koch Industries' 50% ownership stake in Gulf South Pipeline by Entergy-Koch, LP, a joint venture owned equally between Entergy and Koch Industries, after Entergy agreed to implement a transparent process to buy natural gas supplies to assist state regulators in determining whether Entergy purchased natural gas supplies from Entergy-Koch at inflated prices. The concern was that Entergy-Koch, as originally designed, would have enabled and encouraged Entergy to purchase gas supplies from the joint venture at inflated prices and passing the inflated costs onto consumers, since Entergy was guaranteed to retain half of the profit.

El Paso/Coastal - The FTC approved the $16 billion merger between El Paso Energy and the Coastal Corporation after the companies agreed to divest 11 natural gas pipeline systems in Florida, New York, and several midwestern states. El Paso and Coastal together own or have interests in more than 56,000 miles of natural gas pipelines in the United States.

Winn-Dixie/Jitney-Jungle - The FTC permitted Winn-Dixie Stores to acquire 68 supermarkets and other distressed assets from the bankrupt Jitney-Jungle Stores of America, after Winn-Dixie agreed to certain conditions prohibiting it, for a period of 10 years, from acquiring any interest in

four Jitney-Jungle supermarkets without prior FTC approval, or including noncompetition covenants in any future sales of certain supermarket sites. Winn-Dixie is a Florida corporation that operates more than 1,000 supermarkets in 14 southeastern states, with reported sales of approximately $14.1 billion in fiscal 1999.

Flowserve/Ingersoll-Dresser - The Department of Justice approved Flowserve Corporation's acquisition of Ingersoll-Dresser after Flowserve agreed to divest its pump manufacturing plant in Tulsa, Oklahoma, as well as certain lines of pumps that it manufactured. The companies were two of the only three to four credible competitors in the United States involved in the sale of power plant pumps.

Sutter/Summit" California v. Sutter Health Sys. 130 F.Supp.2d 1109 (N.D. Cal. Jan. 29, 2001) - The State of California sought to enjoin the merger of Sutter-owned Alta Bates Medical Center and Summit Medical Center. The district court denied California's motion for a preliminary injunction, finding that the State had failed to meet its burden of proving a relevant geographic market and that, regardless, the defendants established their failing company defense.

December 2002

Wal-Mart Stores, Inc. v. Rodriquez, 2002 U.S. Dist. LEXIS 25228 (D.P.R. Dec. 26, 2002) - The District Court in Puerto Rico granted Wal-Mart's motion for an injunction enjoining the Commonwealth of Puerto Rico from attempting to block Wal-Mart's acquisition of the Amigo supermarket chain. The District Court found that the Commonwealth's antitrust complaint in Commonwealth Court violated Wal-Mart's constitutional rights. During the appeal of the decision to the 1st Circuit, the matter settled.

Baxter/Wyeth - The FTC required Baxter to divest certain assets in connection with its $316 million acquisition of the generic injectable drug business of Wyeth Corporation. While Baxter manufactures no injectable pharmaceutical drugs, its contracts with third-party manufacturers enabled it to sell $264 million of the relevant products in 2001. Wyeth, through its subsidiary ESI Lederle, is a leading U.S. manufacturer of injectable drugs and, according to the FTC, the firm best-positioned to successfully enter the relevant and highly concentrated product markets. To avoid the harm to competition attendant to Wyeth's lack of entry, Baxter was required to divest Wyeth's assets in the general anesthetic propofol to a Commission-approved buyer; to terminate Baxter's new injectable iron replacement therapy (NIIRT) co-marketing agreement with Watson Pharmaceuticals; and to relinquish Baxter's rights to, interests in and assets related to GensiaSicor's pancuronium, vecuronium (both neuromuscular blocking agents) and metoclopramide (an antiemetic agent).

Northrop/TRW - In the $7.8 billion acquisition of TRW, Inc. by Northrop Grumman Corporation, the DOJ required Northrop to consent to certain behavioral restrictions to ensure continued competition in the development and sale of reconnaissance satellite systems. While the U.S. military is the only customer of such reconnaissance satellites, the DOJ contended the vertical combination would have substantially lessened competition in a product market with no viable substitutes. Northrop is one of two companies that design, develop and produce the relevant

payloads. TRW is one of only a few companies capable of serving as the prime contractor on the relevant satellite programs. The consent decree requires Northrop to act in a non-discriminatory manner both in choosing a payload when acting as a prime contractor and in supplying payloads to other prime contractors. To facilitate this non-discrimination, Northrop is required to maintain the payload business separate and apart from its prime contractor business. Finally, the Secretary of Defense will appoint a Compliance Officer within Northrop and the Secretary of the Air Force has the power to ask the DOJ to seek up to $10 million in civil penalties for each violation of the decree.

November 2002

Wal-Mart/Supermercados Amigo - In the acquisition of Supermercados Amigo, Inc., the largest supermarket chain in Puerto Rico, by Wal-Mart Stores, Inc., the FTC required Wal-Mart divest four existing Amigo stores to a competitor, Supermercados Maximo. The FTC's relevant market included full-service supermarkets, supercenters and the retail sale of supermarket-type items in club stores. Under this definition there were more than 250 relevant stores in Puerto Rico, of which 18 were operated by Wal-Mart and 36 by Amigo. While it is the first time club stores have been included in a supermarket product market the FTC stated this did not indicate a change in policy but was rather the result of fact-specific evidence that a significant portion of Puerto Rican consumers use the three types of stores interchangeably. As an additional restriction, Wal-Mart is required to give the FTC prior notice of any relevant future acquisition in seven specific municipalities in Puerto Rico.

Kroger's/Raley's - The FTC announced its decision to close the investigation of Kroger's acquisition of 18 Raley's supermarkets in Las Vegas. In a detailed press release announcing the closing of the investigation, the Commission announced that staff concluded the acquisition is unlikely to be anticompetitive because (i) concentration in the Las Vegas/Henderson geographic market has declined significantly since 1999, because of substantial entry and expansion by existing competitors; (ii) there has been a substantial reduction in Raley's share; (iii) the combined share and competitive significance of a Kroger/Raley's combination is too small to raise credible concerns of potential unilateral effects; and (iv) the rapid growth of the market, along with the presence of four major competitors, vitiates any concern of potential coordinated interaction arising from the transaction.

October 2002

Echostar/DirecTV - Attached is a link to the complaint filed today by the DOJ and Attorneys General of 23 states, DC and Puerto Rico, challenging Echostar's proposed acquisition of DirecTV. The complaint alleges a product market for multichannel video programming distribution (MVPD) and alleges that the merger would produce a monopoly in some geographic markets and a duopoly in others. The DOJ press release notes that the merging parties recently proposed a restructuring of the transaction to remedy the alleged anticompetitive problems but the Department "concluded that even if the proposed concept could be realized, it was unlikely to become a sufficient replacement for the vigorous competition that now exists between Hughes and EchoStar within a reasonable period of time." The complaint was filed today in the DC District Court.

Libbey/Newell Rubbermaid - The FTC resolved its administrative action against Libbey Inc. and Newell Rubbermaid Inc., stemming from Libbey's proposed acquisition of Anchor Hocking Corp., a wholly-owned subsidiary of Newell, after the two companies agreed to provide the commission with written notice prior to the acquisition or sale of all or part of Anchor Hocking for a period of ten years. The settlement was designed to allay the FTC's concern that Newell might seek to sell Anchor or dispose of its assets piece by piece so as to avoid the threshold dollar amount of the Hart-Scott-Rodino Act.

Vlassic/Claussen Pickle - The FTC filed suit seeking a preliminary injunction to block the proposed acquisition of Claussen Pickle Co. by Hicks, Muse, Tate & Furst Equity Fund V, L.P., the private investment firm that owns Vlassic Pickle Co. The FTC alleged that the merger would combine the dominant firm in the refrigerated pickle market, Claussen, with its largest competitor and the largest national brand of shelf-stable pickles, Vlassic.

The Cruise Line Mergers - The FTC closed its parallel cruise industry investigations of Royal Caribbean's proposed combination with P&O Princess and Carnival's proposed takeover of P&O Princess without taking any action. The FTC action, detailed in an eight-page Commission statement, comes on a 3-2 vote, with Commissioners Anthony and Thompson dissenting and issuing their own statement. The Commission statement emphasized the fact-intensive nature of merger analysis, and concluded: (i) the relevant market is oceanic cruising marketed to North Americans, although the majority did acknowledge that there is significant competitive interaction between the cruise industry and alternative vacation options; (ii) this was not a 3-to-2 merger: there is a fourth major cruise line and a competitive fringe; (iii) the risk of unilateral anticompetitive effects is likely not increased because the parties' are not uniquely close competitors and repositioning or expansion by the remaining competitors could thwart anticompetitive unilateral conduct; (iv) the Commission tested 4 variants -- "maverick" theory; coordinated interaction on pricing; on amenities; and on capacity - of coordinated interaction and found all of them lacking.

September 2002

Amgen/Immunex - The FTC settled its lawsuit against Amgen Inc. and Immunex Corp. after the two companies agreed to divest all of their assets related to a neutropenia product, and grant licenses to certain intellectual property rights in two other biopharmaceutical markets. Neutropenia refers to a dangerously low white blood cell count that often results from chemotherapy. Amgen is arguably the most successful biotechnology company in the world with revenues totaling $4 billion in 2001. Immunex is one of Amgen's largest competitors in the billion-dollar neutropenia product market.

Shell/Pennzoil - The FTC reached a consent agreement with Shell Oil Co. in its acquisition of Pennzoil-Quaker State Co.. The FTC contended that the combined firm would have a 39% market share and that merger would lessen competition in the U.S. and Canadian market for Group II paraffinic base oil, an oil used in the manufacture of higher-performance, lighter-viscosity motor oils. The parties agreed that Pennzoil would divest its interest in its Excel Paralubes joint venture with Conoco, Inc. and would freeze, at current levels, the volume of

Group II paraffinic base oil that it could purchase from ExxonMobil Corp. under a current long-term agreement valid through 2010.

August 2002

MSC.Software/Universal Analytics - The FTC and MSC.Software Corp., the largest supplier of computer-aided engineering simulation software in the world, settled allegations that the 1999 acquisition of Universal Analytics, Inc. and Computerized Structural Analysis & Research Corp. violated federal antitrust laws by eliminating competition and monopolizing the market for advanced versions of Nastran, engineering simulation software used in the aerospace and automotive industries. MSC was required to divest at least one clone copy of its current advanced version of Nastran, including the source code, so as to create a viable competitor. While an up-front buyer was not required MSC was also required to refund portions of any pre-paid consideration it had received from customers licensing its advanced Nastran.

Phillips/Conoco - The FTC reached a consent order with Phillips Petroleum Co. and Conoco Inc., both integrated petroleum companies with roughly 10% and 3% of both the nations refining capacity and gas sales, respectively. The FTC contended the merger would lessen competition in five markets: the bulk supply of light petroleum products in Eastern Colorado and Northern Utah; light petroleum product terminaling services in the metropolitan statistical areas (MSAs) of Spokane, Washington, and Wichita, Kansas; the bulk supply of propane in Southern Missouri, the St. Louis MSA, and Southern Illinois; natural gas gathering in more than 50 sections of the Permian Basin in New Mexico and Texas; and the fractionation processes in Mont Belvieu, Texas. The broad-reaching remedy was particularly focused on the refining capacity in the Rocky Mountain region, requiring the divestiture of a Phillips refinery in Utah, a Conoco refinery in Colorado, Phillips' terminals in Washington, Missouri & Illinois, and numerous Conoco natural gas assets. Additionally, the firm was required to create internal firewalls to prevent to transfer of competitively sensitive information among its fractioners in Mont Belvieu, Texas.

May 2002

3D/DTM - The Department of Justice settled with 3D Systems Corporation, allowing the company to go forward with its acquisition of DTM Corporation after the two companies agreed to license their rapid prototyping patents. Rapid prototyping is a technology that helps transform a computer design into a three-dimensional object, and is used in the design process of several consumer products. The merger, as originally proposed, would have reduced the number of competitors in the U.S. market from three to two.

Libbey/Anchor Hocking - The FTC successfully enjoined the merger of Libbey and Anchor Hocking Corp., the first and third largest manufacturers of food service glassware. In blocking the merger, the district court concluded that the defendants' efficiencies evidence failed to rebut the FTC's prima facie showing that there was a reasonable probability that the merger would substantially impair competition in the food service glassware market.

Solvay/Ausimont - The FTC negotiated a consent agreement with Solvay S.A. regarding its acquisition of Ausimont S.p.A.. The FTC contended that the combination would lessen competition in two markets, polyvinylidene fluoride (PVDF) and melt-processible PVDF. The FTC alleged Solvay and Ausimont were two of only three United States producers, and two of the three major global producers of PVDF, a fluoropolymer used in durable coatings, wire and cable jacketing, fiber optic raceways and similar applications. Additionally, the FTC perceived that the two were becoming increasingly significant competitors as Ausimont has been expanding its melt-processible PVDF. The consent agreement required Solvay to divest its U.S. PVDF operations and its interest in Alventia LLC, a joint venture that produces VF2, the main raw material for PVDF.

April 2002

Premdor/Masonite - The Department of Justice allowed Premdor Inc. to proceed with its acquisition of Masonite Corporation, after Masonite agreed to divest a molded doorskin manufacturing plant in Pennsylvania. The merger otherwise would have resulted in the markets for interior molded doorskins and interior molded doors being dominated by two similarly-sized vertically integrated firms.

March 2002

Major League Soccer (Fraser v. Major League Soccer, 284 F.3d 47 (1st Cir. March 20, 2002) - Eight soccer players filed a private antitrust suit against Major League Soccer and its principal investors, claiming that the formation of the league violated, among other things, §7 of the Clayton Act. The players argued that if the member teams had not created the league as a "single entity," the teams would have entered the league independently and competed against each other for players' services. The First Circuit affirmed the lower court's dismissal of the players' §7 claim. The court held that there could be no violation of the act where the formation of the soccer association did not involve the merger or acquisition of an existing business entity, but instead the creation of a totally new entity, which in itself created an entirely new market in which to compete.

Deutche/Leiner Davis - The FTC negotiated a settlement with Deutche Gelatine-Fabriken Stoess AG, the largest producer of gelatin in the world, in its acquisition of Leiner Davis Gelatin Corporation and Goodman Fielder USA, the second-largest producer of beef hide and pigskin gelatin in the world. The FTC contended the transaction would create an entity with more than 50% of the U.S. market for pigskin and beef hide gelatin, a product used in the food industry and for making capsules and tablets in the pharmaceuticals industry. To avoid this result, the settlement excludes the Leiner Davis gelatin plants in the United States and Argentina, leaving Leiner Davis in the gelatin market as a "fully viable firm." Further, it requires that prior approval be obtained from the FTC if Leiner Davis later decides to divest the retained assets in one of three designated ways.

February 2002

Diageo/Pernod/Vivendi - The FTC settled its lawsuit against Diageo, Pernod and Vivendi regarding Diageo's and Pernod's joint purchase of Vivendi's Seagram Spirtis and wine business. On October 23, 2001, the Commission authorized the staff to seek to enjoin the proposed acquisition in United States District Court. That action was not filed in lieu of the companies agreeing to divest the Malibu rum business worldwide to a Commission-approved buyer within 6 months after the transaction is consummated, and agreeing not to obtain or use any commercially sensitive information regarding four other brands they would acquire.

October 2003

GenCorp Inc./Atlantic Research Corporation (in space liquid propulsion) - On October 15, the Federal Trade Commission announced a complaint and consent order that would allow GenCorp Inc. (GenCorp) to proceed with its $133 million acquisition of Atlantic Research Corporation (ARC) provided that GenCorp divests ARC's in-space liquid propulsion [thrusters] business within six months of consummating the transaction. In-space liquid propulsion thrusters (essentially, engines) are used to maneuver spacecraft in space after they are launched into space. The FTC alleged four relevant product markets and alleged that the relevant geographic market is the United States. The geographic market was alleged to be the U.S. in large part because U.S. regulations make it burdensome and time consuming for U.S. commercial, civil and defense customers to procure foreign manufactured thrusters. The FTC alleged that GenCorp and ARC are the only viable suppliers of these thrusters to most U.S. customers, and that even for customers where foreign manufacturers are potential suppliers, GenCorp and ARC are each other's closest competitors. For three of the four relevant thruster markets alleged by the FTC, the FTC alleged that the transaction would create a virtual merger to monopoly. In the fourth product market, the FTC alleged that ARC is the only firm with recent sales. However, the FTC also alleged that GenCorp has substantial existing expertise and technology and is a likely potential entrant into the market. Finally, the FTC alleged that there are high barriers to entry in the four relevant product markets. The proposed Consent Order requires GenCorp to divest ARC's in-space liquid propulsion business within six months of the consummation of the transaction. The proposed Consent Order also requires a hold separate agreement and firewalls to ensure that no confidential information is exchanged between GenCorp and ARC regarding in-space propulsion thrusters.

September 2003

Koninklijke DSM N.V. / Roche Holding AG (feed enzymes) - The Federal Trade Commission announced a complaint and agreement containing consent order allowing Koninklijke DSM N.V (DSM)) to acquire Roche Holding AG's (Roche) Vitamins and Fine Chemicals Division (RV&FC), provided that DSM divest its phytase (feed enzyme) business to BASF AG (BASF). The Complaint alleged that phytase is a relevant product market and that the relevant geographic market is worldwide. Both DSM (with BASF) and Roche (with Novozymes) are in alliances that produce and market phytase. The Commission's Complaint alleged that, absent the consent order, the proposed transaction would lead to DSM being part of alliances that supply more than 90 percent of the $150 million worldwide phytase market and allow DSM to unilaterally exercise

market power. The proposed consent order requires DSM to divest its phytase business to BASF within 10 days of closing of the transaction. In addition, the proposed consent order requires DSM to provide BASF with technical support for R&D operations for six months and to manufacture phytase (at BASF's request) for BASF for up to two years.

General Electric Acquisition of Instrumentarium (medical equipment) - On September 16, 2003 the Department of Justice filed a Complaint and Consent Decree in U.S. District Court in Washington, D.C. concerning the acquisition of Instrumentarium OYJ ("Instrumentarium") by General Electric Medical Systems ("GE"). The Consent Decree allows the acquisition to proceed but requires the parties to divest Instrumentarium's Spacelabs patient monitor business and its Ziehm C-Arm business. According to the press release, the acquisition raised the DOJ's concern in the areas of (i) critical care patient monitors used to measure and display patient vital signs, and (ii) mobile, full-size C-arms (fluoroscopic x-ray machines) used for basic surgical and vascular procedures. In critical care patient monitors, the DOJ alleged that GE and Instrumentarium were two of the three leading U.S. suppliers, with a combined U.S. market share of approximately 49%. The DOJ also alleged that GE "dominates" the mobile, full-size C-arms market in the U.S., with an approximate market share of 68%, and that Instrumentarium was one of three other companies that sold such devices in the U.S. Originally announced in December 2002, GE's acquisition of Instrumentarium was valued at approximately $2.33 billion. The DOJ's resolution of this investigation is consistent with that of the European Commission and the Canadian Competition Bureau, which also required the divestiture of Spacelabs, among other concessions. Instrumentarium had acquired Spacelabs in July 2002 for approximately $168 million. While required to hold Spacelabs and Ziehm separate pending their divestiture, the DOJ did not require an upfront buyer for either entity.

Alcan's acquisition of Pechiney (aluminum brazing sheet) - On September 16, 2003 the Department of Justice filed a Complaint and Consent Decree in U.S. District Court in Washington, D.C. concerning Alcan Inc.'s ("Alcan") pending $4.6 billion tender offer for Pechiney S.A. ("Pechiney"). The Consent Decree requires Alcan to divest Pechiney's aluminum rolling mill located in Ravenswood, West Virginia. The DOJ stated that this divestiture is necessary to maintain competition for the sale of brazing sheet in North America. Brazing sheet is an aluminum alloy used to fabricate various automobile components. The DOJ alleged that Pechiney and Alcan were the second and fourth largest brazing sheet competitors in North America. Their combination would have reduced the number of competitors in the market from four to three, creating the second largest competitor overall with a combined market share of over 40%. The DOJ also alleged that the combination would compromise Alcan's position as a low-cost price maverick. In reviewing the acquisition, the DOJ worked closely with the European Commission (which required additional undertakings) and the Canadian Competition Bureau (which did not). While required to hold the Ravenswood facility separate pending its divestiture, the DOJ did not require an upfront buyer.

August 2003

Aspen Technologies' acquisition of Hyprotech (engineering process simulation software) - On August 7, 2003, the Federal Trade Commission filed an administrative complaint challenging Aspen Technology, Inc.'s ("Aspen") $106.1 million acquisition of Hyprotech, Ltd. ("Hyprotech") under both Section 5 of the FTC Act and Section 7 of the Clayton Act. This acquisition was exempt from HSR reporting requirements and the parties consummated the transaction in May

2002. In its Complaint the FTC alleges that Aspen's acquisition of Hyprotech reduced from three to two the number of competitors that offer engineering simulation software to customers such as chemical companies, pharmaceutical companies, petroleum companies, refineries, and air processing companies. The software allowed these and other companies to run sophisticated simulations of their production processes. The acquisition left the combined company with a market share as high as 82 percent for software provided to certain industries, with its only remaining competitor having been losing market share since the mid-1990s. In addition to eliminating the two principal customer choices for the software, the FTC also alleged that the transaction would reduce innovation competition in the relevant markets. The relief the FTC seeks against Aspen includes the following: (i) divestiture of Hyprotech to a buyer acceptable to the FTC, (ii) Aspen's assistance to restore Hyprotech's competitive viability, (iii) the rescission and assignment of any Hyprotech product contracts entered into since the consummation of the Aspen/Hyprotech combination, and (iv) Aspen's destruction of its copies of any Hyprotech intellectual property and Aspen's agreement not to use such information gained as a result of its acquisition of Hyprotech.

July 2003

United States v. UPM - Kymmene OYJ, (pressure sensitive label stock) - In a decision dated July 25, 2003, Judge Zagel of the U.S. District Court of the Northern District of Illinois preliminarily enjoined UPM-Kymmene's ("UPM") proposed $425 million acquisition of the Morgan Adhesive Company ("MACtac"). Both MACtac and UPM's subsidiary Raflatac manufacture and sell pressure sensitive label stock in the United States. This product is sold to converters that use it to make self-adhesive labels, which are then sold by the converters to downstream end-user customers. The court observed that at least twelve companies manufacture pressure sensitive label stock in the United States and that many of these, including MACtac, had excess production capacity. The court also found low barriers of entry, as new or used coating machines used to make pressure sensitive label stock are readily available. Because of this availability, the converters that use pressure sensitive label stock to make self-adhesive labels have the ability to purchase their own coating machines and to manufacture the stock internally. Moreover, ultimate end-user customers can also substitute other products for self-adhesive labels. Prices for pressure sensitive label stock have been declining in the U.S. over the past several years. Despite the existence of numerous competitors in the manufacture of pressure sensitive label stock, the court found that one - Avery Dennison ("Avery") - dominated the market, with a market share of around 50%. Given a perceived capability of Avery to retaliate against competitors that attempted to underbid it, other manufacturers tended to avoid competing with Avery for the same customers, meaning that the other eleven firms largely competed against each other for the remaining half of the market. The next largest competitors after Avery were Raflatac, with approximately a 20 percent share, and Green Bay, with approximately a 10 percent share. The court concluded that even though the relevant market was not concentrated, the Raflatac/MACtac combination still raised the possibility of anticompetitive coordination and therefore should be enjoined. Key to this conclusion was the position of Raflatac's parent, UPM, as a major supplier of paper to both Raflatac and Avery. The court found that through its acquisition of MACtac, Raflatac would expand both its production capacity and product offering and therefore be in a better position to compete effectively against Avery. Both Avery and Raflatac, however, shared an interest in stopping the recent price declines that had been characteristic in the industry. Moreover, UPM would have the incentive to keep supplying paper to both competitors and would not want to alienate Avery and lose a major customer. The court therefore found that Avery, Raflatac, and

UPM all shared an interest in avoiding competition and maintaining prices, even if only in the short term. The incentive to raise prices also likely would be shared by Green Bay, the third largest competitor, which already avoids direct competition with Avery. Even if one of the smaller fringe competitors attempted to undercut the majors' prices, it would not have the production capacity necessary to successfully counteract the increase. The court rejected the defendants' argument that MACtac currently was a weak, unprofitable competitor, holding that a "weak-competitor defense" is not the same as a failing firm defense and that the former is not sufficient, standing alone, to permit an otherwise anticompetitive merger to proceed under Section 7. In its final analysis, the court states that it takes a somewhat short-term view. It concludes that eventually, the merged Raflatac/MACtac entity could become a more effective counterweight to compete against Avery. Even if the merged entity did not become a more effective competitor and prices did increase, both intermediate and downstream customers could substitute other products. However, the court found that these possibilities would not happen soon enough to negate the potential anticompetitive consequences of the transaction. "[A]ntitrust law does not permit [a one to two year] period of anticompetitive conduct simply because competition will return after it is over."

June 2003

Waste Management/Allied Waste - The Department of Justice required Waste Management, Inc. and Allied Waste Industries, Inc. -- the nation's two largest commercial waste hauling and disposal companies -- to divest commercial waste hauling and disposal assets, and to agree to contract modifications, affecting a total of seven metropolitan areas, in order to proceed with their proposed multi-million dollar sale of voting securities and assets. The Department said the transaction, as originally proposed, would have resulted in higher prices for waste collection or disposal, or both, in these areas. The Department's lawsuit was filed in U.S. District Court in Washington, D.C. to block the proposed transaction. At the same time, the Department filed a proposed consent decree that, if approved by the court, would resolve the Department's competitive concerns and the lawsuit. The New Jersey Attorney General's Office joined in the lawsuit and proposed consent decree. According to the Department's complaint, the transaction, as originally proposed, would have substantially lessened competition in commercial waste hauling or disposal services in Pitkin County, Colorado; Garfield County, Colorado; Augusta, Georgia; Myrtle Beach, South Carolina; Morris County, New Jersey; Bergen and Passaic Counties, New Jersey; and Tulsa and Muskogee, Oklahoma. In each of these areas, Waste Management and Allied are two of only a few significant firms, or the only two significant firms, providing commercial waste hauling or municipal solid waste disposal services. The acquisition would have eliminated a major competitor in each of these areas and resulted in higher prices for consumers. Under the proposed consent decree, Waste Management must divest waste collection operations in Pitkin County, Colorado; Garfield County, Colorado; Augusta, Georgia; Myrtle Beach, South Carolina; Morris County, New Jersey; and Bergen and Passaic Counties, New Jersey. Waste Management will also be required to divest waste disposal operations serving Bergen and Passaic Counties, New Jersey. In addition, Waste Management will abandon its purchase of Allied's waste collection assets and Porter Landfill in Tulsa, Oklahoma. Under the proposed agreement, Waste Management is required to provide the Department prior notification if it proposes to acquire any disposal assets in the Tulsa and Muskogee area. Waste Management has further agreed to alter its existing and future contracts for commercial waste hauling services in Augusta, Georgia and Myrtle Beach, South Carolina.

Chicago Bridge & Iron/Pitt Des Moines, Inc. - An Administrative Law Judge found that Chicago Bridge & Iron Company's (CB&I's ) acquisition of certain divisions of Pitt-Des Moines, Inc. (PDM) violated Section 7 of the Clayton Act and Section 5 of the FTC Act. This transaction was consummated in 2001, after the parties had made their respective HSR filings. The HSR waiting period expired without any action by the FTC or the DOJ and the parties consummated the acquisition. The FTC subsequently filed an administrative complaint alleging that the transaction violated the antitrust laws and seeking to unwind the transaction. Judge Chappell found that the consummated acquisition "may be to substantially lessen competition," and ordered CB&I to divest all of the assets acquired in the acquisition.

Nestle/Dreyer's Ice Cream - The Federal Trade Commission issued a complaint and proposed consent order resolving competitive concerns arising from the acquisition by Nestlé S.A. of Dreyer's Grand Ice Cream Inc. In March 2003, the FTC authorized the staff to seek a preliminary injunction to block the merger of Nestlé and Dreyer's, pending trial. This complaint was never filed in federal court. In its complaint issued with the proposed consent agreement, the Commission alleged that the proposed merger would reduce competition in market to sell superpremium ice cream. Nestle markets Häagen-Dazs brand ice cream. Dreyer's superpremium ice cream brands include Dreamery, Godiva, under a license with Godiva Chocolatier, Inc., and Starbucks, under a joint venture with Starbucks Corporation. The FTC alleged that three firms accounted for 98 percent of the market and the merged firm would account for about 60 percent of that market. To resolve the Commission's concerns, Nestle agreed to divest the superpremium ice cream brands Dreamery and Godiva, the Whole Fruit sorbet brand, and Nestlé's distribution assets to CoolBrands International, Inc. Nestle also agreed to supply at cost Dreamery, Godiva, and Whole Fruit products to CoolBrands and to distribute those brands for CoolBrands in any area of the U.S. where Dreyer's previously distributed the products. According to the Commission press release, Nestle agreed to make its license to manufacture, distribute, and sell Starbucks superpremium ice cream nonexclusive and to allow Mars, Inc., and Ben & Jerry's to terminate their relationships with Dreyer's. Under the terms of the proposed settlement, Nestlé and Dreyer's provide additional premium ice cream or novelty products to CoolBrands for up to five years to enable CoolBrands to operate profitably while it develops additional distribution arrangements. The Commission approved the divestiture by a vote of 5-0. In a concurring statement, Commissioner Anthony characterized the "mix and match" divestiture is "far from ideal." She noted that the order was a more regulatory form of relief than I ordinarily like to see" because, in part it "effectively will require the Commission to supervise the superpremium ice cream marketplace for the next five years." Commissioner Anthony also noted that there is no guarantee that the CoolBrands distribution system will be profitable once the volume commitments end, and that "[a]ll of the risk of failure is borne by CoolBrands and ultimately, consumers -- not the parties."

May 2003

Southern Union/Panhandle Pipeline - The Federal Trade Commission announced a complaint and agreement containing consent order allowing Southern Union (and affiliates) (collectively, "SU") to acquire the Panhandle Pipeline. According to the complaint, SU had been operating the Central Pipeline that was owned by AIG and affiliates. AIG and SU had entered into an agreement to acquire the Panhandle Pipeline from CMS. According to the FTC's press release, the parties modified the agreement to resolve competitive concerns. Under the new agreement, SU would buy all of Panhandle from CMS. AIG was not a party. To resolve FTC concerns, the

order requires Southern to terminate its agreement with AIG to manage the Central Pipeline before consummating the transaction. Southern also is prohibited from directly or indirectly operating or managing the Central pipeline, and from acquiring any interest in AIG or any role in managing or operating the Central pipeline. The proposed order also prohibits SU and CMS from transferring any ownership interest in SU, Panhandle, or the Panhandle pipeline to AIG. If a nonpublic ownership interest in these assets is sold to someone other than AIG, the sale must be made with the requirement that the assets will not be transferred to AIG.

BB&T/First Virginia - The Department of Justice today announced an agreement with BB&T Corporation that requires the company to make substantial divestitures in order to resolve antitrust concerns about the company's pending acquisition of First Virginia Banks Inc. Under the agreement, BB&T will divest 11 First Virginia bank branches and two First Virginia drive-in facilities, with about $290 million in total deposits and loans associated with these branches. In addition, BB&T has agreed that, for a period of time, it will sell or lease any of the branches closed as a result of the merger in specified banking markets to any commercial bank, as long as the bank's offer is equal to or better than any non-bank offer. The proposed merger is subject to the final approval of the Board of Governors of the Federal Reserve System. The Department said that it will advise the Federal Reserve Board that, subject to the divestiture of specified branch offices and associated loans and deposits, the Antitrust Division will not challenge the merger.

April 2003

Dairy Farmers of America/Southern Belle Dairy Co. - On April 24, the Department of Justice filed a complaint in U.S. District Court in London, Kentucky, against Dairy Farmers of America Inc. (DFA) and Southern Belle Dairy Co. LLC to compel DFA to divest its interests in Southern Belle Dairy. The transaction was consummated in 2002 and was not HSR reportable. The Department said DFA's acquisition eliminated the only other independent bidder for school milk -- resulting in a monopoly -- in 47 school districts, and reduced the number of independent bidders from three to two in 54 school districts, in Kentucky and Tennessee. The Commonwealth of Kentucky joined the Antitrust Division in bringing the lawsuit.

ICAP/BrokerTec - On April 22, the Department of Justice announced that ICAP plc and BrokerTec LLC agreed to restructure their acquisition and certain long-term agreements to resolve objections raised by the DOJ. According to the press release, ICAP plc and BrokerTec LLC are two of the world's largest interdealer brokers and among only a small number of competitors to provide those services. According to the DOJ, the modified agreements will enable third parties to compete in the market for interdealer brokerage services. The case has particular interest because the DOJ concern and remedy focused on the merging parties long-term contracts. According to the press release, BrokerTec had long-term agreements with its shareholder-customers. Under the agreements, the customer-shareholders committed to pay at least $61.3 million annually for three years in essentially pre-paid commissions. The agreements also contained a maximum cap on commissions (which could be extended for up to five years). In addition, the agreements contained a non-compete provision and a most-favored-nation clause requiring ICAP to offer BrokerTec's shareholders the lowest per-unit commission cost available to any ICAP customer. Also, the agreements gave BrokerTec's shareholders the right to appoint one member to ICAP's Board of Directors. To obtain DOJ approval for the proposed merger, the parties agreed to restructure these shareholder agreements. The

modified agreements excluded certain securities, the most-favored nations clause, and the non-compete provisions. The revised agreements also contained low minimum pre-paid commission commitments, reduced maximum caps on commissions, and shorter extension periods. Also, under the agreement with the DOJ, BrokerTec's shareholders will not be able to appoint an ICAP Board member.

SGL Carbon Aktiengesellschaft/Carbide Graphite Group - The Department of Justice filed a complaint on April 15th in the W.D. Pa. to block the proposed acquisition by SGL Carbon Aktiengesellschaft of certain assets of the Carbide/Graphite Group. The complaint alleges that the parties are two of only four manufacturers of "large graphite electrodes." The seller filed for bankruptcy and the proposed asset purchase agreement had been submitted for final bankruptcy court approval for the same day the complaint was filed. Subsequently, the assets were awarded by the bankruptcy Court to an alternative bidder and the DOJ dismissed its complaint.

UPM Kymmene/Bemis Corporation - The Department of Justice filed a civil antitrust lawsuit in the U.S. District Court in Chicago, to block UPM Kymmene's Raflatac subsidiary from acquiring Bemis Corporation's MACtac subsidiary. The complaint alleged that Raflatac and MACtac are the second and third largest producers of pressure sensitive labelstock in North America, which is the base material for labels used in a variety of applications that American consumers encounter every day, including shipping labels and supermarket scale labels. The DOJ's press release states that "our investigation has revealed that this market is already one in which competitors have sought to coordinate rather than compete."

Pfizer/Pharmacia - The Federal Trade Commission required Pfizer to divest pharmaceutical products in nine separate product markets to settle charges that its merger with Pharmacia would violate the antitrust laws. The products to be divested include extended release drugs for the treatment of overactive bladder; combination hormone replacement therapies; treatments for erectile dysfunction; drugs for canine arthritis; antibiotics for lactating cow mastitis; antibiotics for dry cow mastitis; over-the-counter hydrocortisone creams and ointments; over-the-counter motion sickness medications; and over-the-counter cough drops. The divestitures ordered were to several different pre-approved buyers and were to be completed within 10 days after the merger was consummated.

March 2003

Univision/Hispanic Broadcasting - The Department of Justice required Univision Communications Incorporated to sell a significant portion of its partial ownership interest in Entravision Communications Corporation and agree to other restrictions in order to proceed with its $3 billion acquisition of Hispanic Broadcasting Corporation. The Department said that, without these conditions, Univision's acquisition of HBC would lessen competition in the sale of advertising time on many Spanish-language radio stations because HBC is Entravision's principal competitor in Spanish-language radio in many geographic areas. According to the complaint, HBC and Entravision are each other's closest competitor in many geographic areas where there are only a few Spanish-language radio broadcasters. If the combined company were to retain its 30% equity stake and governance rights in Entravision, Univision's acquisition of HBC would substantially reduce competition between Univision/HBC and Entravision and

result in increased prices and reduced levels of service in the sale of advertising time on Spanish-language radio. The proposed consent decree, among other conditions, requires Univision to divest its Entravision equity so that it holds no more than 15 percent of Entravision shares within three years and no more than 10 percent within six years, requires Univision to exchange its Entravision stock for a nonvoting equity interest with limited rights, and prevents Univision from participating in Entravision governance, or trying to improperly influence the conduct of Entravision's radio business for a period of ten years.

Nestle/Dryer's - Alleging a "superpremium" ice cream market, the FTC voted 5-0 to authorize the staff to seek a preliminary injunction blocking the merger of Nestle Holdings, Inc. and Dreyer's Grand Ice Cream. The proposed transaction would combine Nestles Haagen Dazs with Dreyers' Dreamery, Godiva and Starbucks Ice Cream. The FTC's press release indicated that the agency will allege that the merger will eliminate competition and raise prices for superpremium ice cream. Nestlé markets superpremium ice cream under the Häagen Dazs brand. Dreyer's superpremium brands include Dreamery, Godiva and Starbucks ice cream. As of 3/15/03, the complaint has not yet been filed.

January 2003

Dainippon/Bayer - The FTC accepted of a consent order settling competitive concerns raised by the acquisition of Bayer Corporation by Dainippon Ink and Chemicals, Incorporated. According to the FTC's complaint, the proposed acquisition raised competitive concerns in the world market for perylenes. Dainippon's U.S. subsidiary, Sun Chemical, and Bayer are two of only four viable suppliers of perylenes. Perylenes are organic pigments used to impart unique shades of red to a number of products, including coatings, plastics and fibers. The FTC's complaint alleges that the market for perylenes is highly concentrated and the proposed acquisition would eliminate head-to-head competition between Sun Chemical and Bayer, allowing the combined firm unilaterally to exercise power, and increasing the likelihood of coordinated interaction among. The consent order requires Dianippon to divest Sun Chemical's perylene business to Ciba Specialty Chemicals, Inc. The Commission's press release and the analysis to aid public comment also discusses the Commission's conclusions on the effect of the proposed transaction on the market for quinacridones, another high-performance pigment. The Commission concluded that the transaction would not increase the likelihood of higher prices in this market for a number of reasons, including the presence of bigger competitors, recent new entry, and limited head-to-head competition between the merging firms.

December 2004

Genzyme’s Acquisition of ILEX (pharmaceuticals) - On December 20, 2004, the FTC accepted a consent agreement requiring Genzyme to divest its contractual rights to ILEX’s solid organ transplant (“SOT”) acute therapy drug, Campath, before Genzyme could acquire all other ILEX assets. The FTC stated that the divestiture was necessary in order to maintain competition between Campath and Genzyme’s own SOT acute therapy drug, Thymoglobulin. Although there are currently four other SOT acute therapy drugs used in the United States, Thymoglobulin and Campath are especially close competitors because their mechanisms of action are more alike than those of the other four products. The consent order requires Genzyme to divest all

contractual rights related to Campath to Schering AG, which already distributes and markets Campath in the United States.

November 2004

Smithfield’s Acquisition of IBP stock (pork packing) - On November 10, 2004, the DOJ announced that it had reached an agreement with Smithfield Foods Inc. (“Smithfield”), hog producer and pork packer, to settle charges that the company twice failed to comply with the premerger notification requirements before making certain acquisitions of stock of its competitor, IBP Inc. (“IBP”), a pork packer. The alleged violations took place in 1998 and again in 1999 when Smithfield acquired more than the statutory threshold of the voting securities of IBP Inc. without complying with the Hart-Scott-Rodino (“HSR”) premerger notification requirements. The DOJ alleged that the HSR’s exemption covering acquisitions “solely for the purpose of investment” did not apply because Smithfield was actively considering merging with IBP at the time. Smithfield could have been penalized up to $11,000 per day for failure to file a reportable transaction, instead it settled with the DOJ for $2 million in civil penalties.

October 2004

Cingular Wireless’ Acquisition of AT&T Wireless (wireless networks and technology) - On October 25, 2004, the DOJ announced that it had reached a settlement with Cingular Wireless Corporation (“Cingular”) concerning the company’s $41 billion acquisition of AT&T Wireless (“AWS”). The settlement required the divestiture of assets in 13 markets. Under the terms of the settlement, the merged firm must divest AWS’s mobile wireless services business, including spectrum and customer contracts, in parts of Connecticut (Litchfield), Kentucky (Fulton), Oklahoma (Oklahoma City and Ponca City), and Texas (Lufkin/Nacogdoches). In Connecticut, Kentucky, and Texas the merged firm may retain some of AWS’s wireless spectrum. The merged firm must also divest minority equity interests in mobile wireless services providers in FCC licensing areas in Georgia (Athens), Kansas (Topeka), Louisiana (Shreveport, Monroe), Massachusetts (Pittsfield), and Missouri (St. Joseph), although it may retain its minority interests in Kansas, Louisiana, and Missouri if those interests are made irrevocably and entirely passive to the satisfaction of the DOJ. To resolve the DOJ’s competitive concerns related to mobile wireless broadband services, the merged firm must divest 10 MHz of contiguous PCS wireless spectrum in parts of Michigan (Detroit), Tennessee (Knoxville), and Texas (Dallas-Fort Worth). In Knoxville, the merged firm can alternatively restructure AWS’s existing relationship with another spectrum licensee in the market to the satisfaction of the DOJ so that the merged firm has no equity, managerial, or other interest in the licensee and the DOJ's competitive concerns are resolved. One day later, the FCC announced the approval of the merger provided certain conditions were met. The FCC conditioned its consent on the divestiture of the AWS operating units and associated spectrum in 22 local mobile telephony markets and limiting the spectrum held by the merged entity in six additional local markets. The FCC required additional consent conditions including: divestiture of any post-transaction spectrum in excess of 80 MHz in a local market; forfeiture of any right to bid in Auction No. 58 (Broadband PCS) for any licenses in any Basic Trading Area (“BTA”) in which Cingular controls, or has a 10% or greater interest in, 70 MHz or more of cellular and/or PCS spectrum; and unwinding of the Cingular and T-Mobile Joint Venture.

September 2004

United States v. Oracle Corp (enterprise resource planning software) - On September 9, 2004, Chief Judge Vaughn Walker of the Northern District of California ruled in favor of Defendant Oracle Corporation (“Oracle”), concluding that the DOJ and 10 state attorneys general (collectively, the “Plaintiffs”) failed to show by a preponderance of the evidence that Oracle’s proposed acquisition of PeopleSoft was likely to substantially reduce competition in any properly defined relevant market. This case involved the enterprise resource planning (“ERP”) software industry. ERP is packaged software that integrates most of an entity’s data across nearly all business activities for a variety of “pillars” including human resource management (“HRM”) and financial management systems (“FMS”). The Plaintiffs alleged that the proposed acquisition would reduce competition in a product market defined as “high functionality” HRH and FMS software sold to “large complex enterprises” in the United States. According to the Plaintiffs, only three companies competed in this market: Oracle, PeopleSoft and SAP. The Plaintiffs further alleged that for many customers Oracle and PeopleSoft were next best substitute suppliers, leading to a risk of unilateral anticompetitive effects resulting of their combination. Oracle did not take a firm position on the relevant product market definition, except to say that the Plaintiffs’ proposed definition was vastly under inclusive and that the market is at is at least as broad as all sources of supply for HRM and FMS products, including mid-market vendors, “best of breed” vendors, and outsourcing. The Court agreed that the Plaintiffs’ proposed relevant product market definition was under inclusive. In so concluding, it refused to rely on customer testimony put forth by the Plaintiffs for the purpose of establishing the relevant market because such evidence showed only what the customers preferred, but not what they could do in the event of an anticompetitive price increase. Regarding the Plaintiffs’ attempt to exclude SAP from the relevant market, the Court found testimony about SAP “struggling” in the U.S. market as incredible. The Plaintiffs’ attempt to exclude mid-market vendor Lawson from the relevant market also was rebutted by strong testimony to the contrary, by Lawson and others, as well as documentary evidence found in PeopleSoft’s files regarding Lawson’s competitive significance. The Plaintiffs’ economist and industry experts failed to articulate clear boundaries for the “high functionality” of the relevant products and presented evidence based on data that the Court found to be “economically inaccurate.” This failure to demonstrate any clear breaks in the chain of substitutes sufficient to justify the alleged market boundaries resulted in the Court finding that outsourcing, mid-market vendors, Microsoft, and best of breed solutions could not be excluded from the relevant market. Because the Plaintiffs failed to establish a relevant market, the Court refused to consider evidence on to market shares, concentration, and competitive effects of the transaction. Subsequently, on October 1, 2004, the DOJ announced that it would not appeal Judge Walker’s decision.

General Electric’s Acquisition of InVision Technologies (x-ray testing and inspection equipment) - On September 15, 2004 the FTC announced that it had concluded a proposed consent order that allowed General Electric (“GE”) to proceed with its $900 million acquisition of InVision Technologies, Inc. (“InVision”). Pursuant to this order, GE must divest InVision’s YXLON subsidiary to an FTC-acceptable purchaser within 6 months. The FTC alleged that the acquisition raised concerns in three U.S. markets for the development, manufacture, and sale of three types of x-ray nondestructive testing (“NDT”) and inspection equipment. These markets were defined as (i) standard x-ray cabinets, (ii) x-ray NDT inspection systems equipped with automated defect recognition software (“ADR-capable x-ray systems”), and (iii) x-ray generators capable of producing energy levels higher than 350 kilovolts (“high-energy x-ray generators”).

Standard x-ray cabinets are multi-purpose systems with generic configurations sold at uniform prices, capable of inspecting a variety of diverse objects. ADR-capable x-ray systems are completely automated inspection machines that eliminate the need to make subjective human decisions about the objects under inspection. High-energy x-ray generators are components of x-ray NDT and inspection systems used to penetrate dense materials such as steel. The FTC alleged that GE’s acquisition of InVision’s YXLON subsidiary would combined two of the leading manufacturers of these types of equipment and allow the combined firm to exercise unilateral market power. Barriers to entry into these relevant markets, based on technology, service networks, and reputation, were high.

Buckeye Acquisition of Shell Assets (petroleum pipelines and terminals) - On September 27, 2004, the FTC permitted Buckeye Partners (“Buckeye”) to acquire five refined petroleum products pipelines and twenty-four petroleum products terminals from Shell Oil Company (“Shell”), on the condition that a Niles, Michigan refined petroleum terminal be excluded from the proposed agreement. The Commission said the transaction, as originally proposed, would have substantially lessened competition in the market for terminaling gasoline, diesel fuel and other light petroleum products in the area around Niles, Michigan. Under the terms of the agreement, Buckeye must notify the Commission of the acquisition of any interest in Shell’s Niles terminal for the next 10 years, and Shell must also provide prior notification of any sales or transfers of interest in its Niles terminal for the next 10 years.

Magellan’s Acquisition of Shell Assets (petroleum terminals) - On September 29, 2004, the FTC required Magellan to divest a refined petroleum products terminal in Oklahoma City, Oklahoma in order to complete a proposed $492.4 million acquisition of selected pipeline and terminal assets from Royal Dutch Petroleum Company (“Shell”). The FTC stated that the acquisition, which consisted of a package of pipelines and terminals in the Midwestern United States, would have further concentrated the market for terminaling services in the Oklahoma City Metropolitan Area, thereby increasing the risk of coordinated effects. The FTC further stated that entry into the market was unlikely, that any future entry would not be timely or sufficient to mitigate anticompetitive effects.

Enterprise Product Partners/GulfTerra Energy Partners Merger (natural gas pipelines and propane storage) - On September 30, 2004 the FTC announced that it had concluded a proposed consent order that allowed the proposed $13 billion merger of Enterprise Products Partners L.P. (“Enterprise”) and GulfTerra Energy Partners L.P. (“GulfTerra”) to proceed. The FTC analyzed the acquisition in two relevant markets: (i) natural gas pipeline transportation from the Gulf of Mexico’s West Central Deepwater region, and (ii) propane storage and terminaling services in Hattiesburg, Mississippi. Concerning the first relevant market, assets owned or controlled by the merging companies accounted for two of the three major pipelines that provide gas pipeline transportation services to the West Central Deepwater region. Concerning the second market, the merging companies would control approximately 53% of the propane storage capacity in Hattiesburg, Mississippi, a key storage point for propane suppliers in the southeastern United States. The proposed consent decree requires either Enterprise or GulfTerra to divest its interest in pipeline assets in the West Central Deepwater region. It also requires Enterprise to divest its ownership interest in one of its two storage facilities in Hattiesburg.

August 2004

FTC v. Arch Coal, Inc., 329 F. Supp.2d 109 (D.D.C. 2004) (coal) - On August 13, 2004 Judge John Bates of the Federal District Court for the District of Columbia Circuit denied the FTC’s request for a preliminary injunction of Arch Coal, Inc.’s ("Arch") proposed $364 million acquisition of Triton Coal Company ("Trinton"). The district court also rejected the FTC’s assertion that a court may not consider the competitive effects of curative divestitures proffered by merging parties during a preliminary injunction proceeding. Thus, Arch’s divestiture of one of the two Triton mines to Peter Kiewit Sons, Inc. ("Kiewit") was considered by the district court in issuing the denial. During the latter part of June and early July, the court heard testimony from over twenty witnesses, including: customers, industry and economic experts, and company executives. The district court considered a market, post-acquisition, where five suppliers of Southern Powder River Basin coal ("SPRB") would remain, with Arch remaining the third largest firm, with an almost 20% share of SPRB reserves and an even greater share of capacity. The FTC argued for a narrower product market limited to 8800 BTU coal in which Arch’s share would be higher, but the court rejected this argument, finding the relevant product market to include all SPRB coal. Based on the broader SPRB market, the district court noted that although a presumption exists that the transaction will lessen competition, because the prima facie case is not strong, less of a showing is required of defendants to rebut the prima facie case. During the course of the hearing the FTC alleged that the transaction would lead to tacit collusion, asserting that Arch’s CEO had already signaled to the industry the need for output restrictions and that customers had legitimate cause for concern. The district court acknowledged the CEO’s statements and customer complaints as well as the fact that the market arguably exhibited several characteristics of markets susceptible to collusion, including a degree of product homogeneity, high barriers to entry, small and frequent transactions, and availability of market information. Nonetheless, the district court concluded that the industry had been performing competitively. All five suppliers typically bid for opportunities, with the winning bidder often being a surprise. Moreover, the district court found that even if collusion were possible, cheating would be difficult to detect because of both the limited availability of current public information and the unpredictability of supply and demand. Finally, the district court noted that given Triton’s high cost structure and "last man standing" pricing policy, the transaction would not eliminate a maverick in the industry and, if anything, Triton’s current market share overstated its competitive significance. On August 17, the FTC filed an emergency motion for an injunction pending appeal, arguing among other things, the district court erred in treating the FTC’s coordinated effects theory as "novel" and ignoring customer complaints. The Court of Appeals for the D.C. Circuit denied the FTC’s motion on August 20, thereby permitting the transaction to proceed. The transactions between Arch and Triton and Arch and Kiewit were consummated on the same date as the Court of Appeals denial. Subsequently, the FTC withdrew its appeal at the Court of Appeals.

Wachovia/SouthTrust Merger (banks) - On August 25, 2004, the DOJ announced that it had reached an agreement with Wachovia Corporation ("Wachovia") concerning the company’s pending merger with SouthTrust Corporation ("SouthTrust"). Pursuant to this agreement, Wachovia agreed to divest eighteen SouthTrust branches located in four banking markets in Georgia and Florida. The total deposits of the divested branches are approximately $592 million. Additionally, Wachovia agreed that, for a period of time and in specified areas, it will not sell or lease any of the branch offices closed as a result of the merger to a commercial bank buyer so long as there is a bank-buyer offer that meets or exceeds the best offer from a non-bank buyer. The Board of Governors of the Federal Reserve System has final authority to approve the

merger. Subject to the agreement specified above, the DOJ will inform the Board that it does not oppose the acquisition.

Syngenta AG/Advanta B.V. (sugar beets) - On August 25, 2004, the DOJ required Syngenta AG ("Syngenta") to divest the worldwide sugar beet seed business of Advanta B.V. ("Advanta") in order to proceed with its planned $475 million acquisition of Advanta. The DOJ alleged the transaction, as originally proposed, would have substantially reduced competition in the market for sugar beet seeds suitable for growing in the United States. It characterized the transaction as a three-to-two merger, with the combined company having a market share of around 36%. The DOJ claimed that the combination of Syngenta and Advanta sugar beet seed businesses would have led to higher sugar beet seed prices and reduced innovation through the development of fewer varieties of new seeds suitable for growing in the United States. The proposed consent decree requires Syngenta to divest Advanta’s worldwide sugar beet seed business to a DOJ-approved purchaser, and requires that Syngenta hold the business separate pending this divestiture.

Connors Bros./Bumble Bee (sardines) - On August 31, 2004, the DOJ announced that it had reached an agreement with Connors Bros. ("Connors") to divest its "Port Clyde" sardine snack brand. The DOJ alleged that this divestiture was necessary to avoid potential anticompetitive effects arising from Connors’ acquisition of Bumble Bee, which the parties consummated on April 30, 2004. Connors and Bumble Bee are the two largest sellers of sardine snack fish in the United States. The DOJ alleged that their combination resulted in the merged entity having an approximate market share of 75% in the U.S. sardine snack fish market, with the remaining 25% being split among numerous smaller competitors. Connors and Bumble Bee also had the most well-recognized brands in this market (Connors’ Brunswick, Beach Cliff, and Port Clyde brands and Bumble Bee’s own brand). The divested assets in the proposed consent decree include the Port Clyde label, existing inventories of Port Clyde labeled sardines, and, at the acquiring firm’s option, one of two processing plants.

July 2004

Aspen Technology Divests Assets from its Purchase of Hyprotech (process engineering software) - On July 15, 2004, the FTC announced a consent order requiring Aspen Technology to divest the overlapping assets it obtained through its $106.1 million 2002 acquisition of Hyprotech, its closest competitor in developing and supplying specialized process engineering software. According to the FTC, the acquisition allegedly significantly increased concentration in the relevant product markets, led to the combination of the two closest competitors, and left a combined AspenTech/Hyprotech as a dominant number one with only SimSci as a relatively small number two. The main requirements of the order include AspenTech’s sale of the Hyprotech process engineering software and the AspenTech operator training software business to a buyer that obtains the Commission’s prior approval and the sale of Hyprotech’s AXSYS integrated engineering software business to Bentley Systems, a technology firm that provides software for a variety of building, industrial, and civil engineering applications.

Sanofi-Synthélabo’s acquisition of Aventis (pharmaceuticals) - On July 28, 2004, the FTC cleared Sanofi-Synthélabo’s (Sanofi) $64 billion acquisition of Aventis, provided the companies divest certain assets and royalty rights in the overlapping markets for factor Xa inhibitors used

as anticoagulants, cytotoxic drugs for the treatment of colorectal cancer, and prescription drugs used to treat insomnia. Specifically, the order requires that Sanofi divest: 1) its Arixtra factor Xa inhibitor and related assets to GlaxoSmithKline, plc (Glaxo); 2) key clinical studies for the Campto® cytotoxic colorectal cancer treatment that Aventis is currently conducting, along with certain U.S. patents and other assets related to areas where Pfizer markets Camptosar® to Pfizer, Inc. (Pfizer); and 3) Aventis’ contractual rights to the Estorra insomnia drug either to Sepracor, Inc. or another Commission-approved buyer within 90 days. The consent agreement contains a provision under which an interim monitor will oversee the asset transfers and ensure Sanofi and Aventis comply with the provisions of the consent agreement.

June 2004

Intron Inc.’s acquisition of Schlumberger Electricity, Inc. (mobile radio frequency technology) - On June 3, 2004 the FTC filed a complaint and proposed consent decree concerning Intron, Inc.’s ("Intron") proposed $255 million acquisition of Schlumberger Electricity, Inc. ("Schlumberger"). The decree permits the acquisition to proceed subject to Intron granting a perpetual, royalty-free, irrevocable license to Hunt Technologies, Inc. ("Hunt") for Intron’s mobile radio frequency ("RF") automatic meter reading ("AMR") technologies. The FTC alleged that the acquisition as originally proposed would have given Intron a market share of approximately 99% in a relevant product market defined as the sale of RF AMR systems to electric utilities. The relevant geographic market was defined as the United States. Mobile RF AMR systems allow utility companies to automatically and remotely gather electric consumption data from their customers. Intron and Schlumberger were the two leading providers of this technology in the United States. The three remaining competitors each had a market share of less than 1%. The FTC also alleged that the two companies were next best substitutes, due to their access to proprietary technology. The consent decree seeks to ensure Hunt’s successful entry as a viable competitor through the license of Intron’s RF AMR systems. To further facilitate Hunt’s entry, the decree also requires Intro to provide Hunt with technical assistance and technology updates for three years.

Petitions to Reopen and Modify Nestlé Dreyer (ice cream) - On June 10, 2004, the FTC received a petition to reopen and modify the final decision and order in the 2003 transaction concerning Nestlé’s acquisition of Dreyer’s Grand Ice Cream Holdings. The respondents petitioned the FTC on behalf of CoolBrands International and its subsidiary Integrated Brands, the Commission-approved divestiture buyer in this proceeding. The respondents requested that the Commission reopen and modify the final order to amend certain provisions of existing agreements with CoolBrands, as well as to allow CoolBrands and Dreyer’s to enter into a new "Co-Pack Agreement" for the divested product that will last for an additional 12 months. Specifically, respondents sought to modify the order to allow them to continue to manufacture Dreamery and Godiva ice cream and Whole Fruit sorbet for more than the one year provided. The Commission granted the request on July 9, 2004. In addition, a subsequent petition to reopen and modify the final decision and order was approved by the Commission on September 7, 2004. The supplemental petition requested the amendment of certain provisions of existing agreements with CoolBrands, as well as to allow CoolBrands and Dreyer’s to enter into a new "Trademark License Agreement" for Dreyer’s to have the right to use the "Whole Fruit" name on Dreyer’s fruit bar line for an additional 18 months. The respondents also requested that the public comment period regarding its petition be eliminated, which the Commission denied.

April 2004

FTC Complaint Concerning Arch Coal’s Proposed Acquisition of Triton Coal Company (coal) - In April the FTC filed both an administrative complaint and a complaint in federal district court seeking to block Arch Coal Inc.’s (Arch) $364 million acquisition of all of the assets of the Triton Coal Company, L.L.C. ("Triton") from New Vulcan Holdings, L.L.C. Pursuant to this transaction, Arch intended to acquire Triton’s North Rochelle and Buckskin mines located in Wyoming’s Southern Powder River Basin ("SPRB"), keeping the former while spinning-off the latter to Peter Kiewit Sons’, Inc. ("Kiewit"). The FTC alleged that the acquisition would violate Section 7 by combining two of the four leading producers of SPRB coal, and two of the four producers of "Tier 1" 8800 Btu SPRB coal. In its administrative complaint, the FTC details how SPRB coal (which is sold to electric generators located in at least 26 states) has distinct advantages over other types of coal produced in the United States. These advantages include having a lower sulfur content and being one of the few types of coal that comply with the current sulfur emission limits imposed on coal-fired generators by the 1990 Clean Air Act. The most highly valued coal within the SPRB is 8800 Btu coal – produced only in the "Tier 1" area of the SPRB – which enjoys advantages such as having a lower sulfur content compared to other forms of SPRB coal. According to the FTC, these advantages have resulted in producers of 8800 Btu SPRB coal being able to command a price premium over other forms of SPRB coal. Additionally, the FTC alleged that Arch’s acquisition of Triton would remove the principal source of excess capacity in the SPRB and increase the likelihood of coordination among the remaining competitors. The FTC noted that the SPRB coal market possesses many structural features that facilitate coordination, including a small number of competitors producing a homogeneous product, high entry barriers, relative inelastic demand, availability of substantial market and competitor information through trade press and other means, and close geographic proximity of the major competitors. The FTC alleged a recent history of signaling by Arch and other major competitors through public statements made at trade association meetings, press releases, and other statements, urging reductions in output. Triton, however, had been somewhat of a maverick on the industry, with its New Rochelle mine being the largest source of increased SPRB coal supply in recent years. The FTC also argued that Arch’s commitment to sell Triton’s Buckskin mine to Kiewit is insufficient to alleviate the anticompetitive concerns raised by the transaction. It seeks to enjoin the acquisition and place a ten-year prior notice period for both Arch and Triton for acquisitions of any other SPRB coal producers.

United States v. Dairy Farmers of America, Inc. Civ. Act. No. 03-206-KSF (E.D. Ky. Apr. 13, 2004) (dairy; estoppel defense in merger review) - On April 13, 2004, Chief Judge Karl S. Forester held that the DOJ was not estopped from seeking to challenge a February 2002 acquisition by Diary Farmers of America, Inc. ("DFA") of a controlling interest in the Southern Belle diary in Somerset, Kentucky. The DFA is a milk cooperative owned by diary farmers that markets the raw, unprocessed milk of its members to diary processors. Prior to the attempted acquisition, DFA had a minority ownership interest in Southern Belle. The DOJ alleged that the acquisition would combine the two largest suppliers of milk to school districts on Southeastern Kentucky and Northeastern Tennessee – Southern Belle and Flav-O-Rich ("FOV") – under DFA’s common control. In defense, DFA argued that the DOJ is estopped from challenging the acquisition based on the position it took in the 1995 acquisition of diary plants and other assets of FOV by Land-O-Sun Diaries, Inc. (the "LOS/FOV Transaction"). LOS and FOV had competed in markets similar to DFA and Southern Belle. The DOJ knew at the time of the LOS/FOV Transaction that DFA owned a partial ownership interest in the acquiring party, LOS. However, to resolve the competitive concerns arising from the LOS/FOV Transaction, the DOJ required the parties to divest assets to Valley Rich Diary, which at the time was 50% owned by DFA.

DFA claimed that it relied on the DOJ’s actions concerning the LOS FOV Transaction to proceed with its acquisition of Southern Belle. Judge Forester ruled on cross summary judgment motions that this defense was not available to DFA. In addition to the requirements to estop a party generally, estoppel against the government requires an additional burden of showing international affirmative misconduct. This high standard requires more than a showing of negligence or failure to follow internal agency guidelines. The court held that DFA did show any evidence of affirmative misconduct here, stating that "[g]iven the fact-specific nature of antitrust analysis, wide government discretion is necessary." Id. at 6. L’Air Liquide’s acquisition of Messer Griesheim GmbH (industrial gases) On April 29, 2004 the FTC announced that it had concluded a proposed consent order that allowed L’Air Liquide ("Air Liquide") to proceed with its $3.5 billion acquisition of Messer Griesheim GmbH ("Messer"). Pursuant to this order, Air Liquide must divest six Messer Air Separation Units ("ASUs") located in Vacaville and Irwndale, California; San Antonio and Waxahachie, Texas; Westlake, Louisiana; and DeLisle, Mississippi to a buyer acceptable to the FTC within six months. The FTC analyzed the transaction’s effects on competition in three distinct product markets: (1) liquid oxygen, (2) liquid nitrogen, and (3) liquid argon. Concerning liquid oxygen and nitrogen, transportation costs make it uneconomical to ship these gases from ASUs located more than 250 miles from the purchaser. Therefore, properly defined relevant geographic markets for these gases are local; and in this transaction the local markets the FTC analyzed were Southern California, Northern California, Southern Texas, Western Louisiana, and the Central Gulf Coast. Because liquid argon is rare compared to liquid oxygen and nitrogen, it commands a price premium, making it economical to ship over longer distances. The FTC therefore defined the relevant geographic market for liquid argon to be the entire continental United States. In some markets, such as Southern Texas and Western Louisiana, Air Liquide and Messer were the only two supplies of liquid oxygen and nitrogen. The transaction would have resulted in the ability to exercise unilateral market power in these areas for these gases. For sales of liquid oxygen and nitrogen in the other three markets defined by the FTC, Air Liquide and Messer were two of only five suppliers of these gases. The same situation prevailed on a national basis for sales of liquid argon (i.e., five to three). In these markets, the merger would eliminate Messer as an aggressive competitor with substantial excess capacity, thereby increasing the risk of successful coordination among the remaining three competitors. The proposed consent order requires Air Liquide to divest the six ASUs identified above. While not requiring an up-front purchaser, the order requires that all six ASUs be sold to a single purchaser that will operate them as a going concern.

March 2004

Gerlinger v. Amazon.com, Inc., 2004 U.S. Dist Lexis 4604 (N.D. Cal. March 23, 2004) (joint venture for on-line book sales) - This class action challenged an agreement between Amazon and Borders concerning Amazon’s sale of books over the Internet on behalf of Borders. The questions it raised under Section 7 were (i) the definition of an asset, and (ii) what constitutes anticompetitive effect. The case arose from a "Syndicated Store Agreement" between Borders and Amazon. Pursuant to this agreement, Borders and Amazon agreed to launch www.borders.com as a co-branded website. Amazon operated the website and unilaterally determined the selection and prices of books offered on it, except for those books available for in-store pick-up at a Borders’ brick and mortar stores. Borders paid Amazon a one-time fee for setting up the site and thereafter received commissions. If Amazon’s operation of www.borders.com failed to reach certain operational targets, Borders retained the right to terminate the agreement prior to its intended 3-year duration. While Amazon operated the website pursuant to this agreement, Borders retained legal ownership of the www.borders.com

URL. The agreement with Borders was similar to other agreements Amazon had concluded to operate other merchants’ on-line retail stores. Prior to the conclusion of this agreement, Borders had competed with Amazon in the on-line sale of books. Its web entry, however, was unsuccessful, accounting for only 1% of Borders’ total book sales and one-tenth of 1% of total industry-wide book sales (combining sales from both on-line and book and mortar stores). Among other claims, the class plaintiffs challenged this agreement under Section 7 of the Clayton Act. The court denied plaintiffs’ motion for judgment on the pleadings concerning the Section 7 claims. It held that the rights Amazon acquired through the agreement were sufficient to satisfy the broad definition of "asset" under Section 7. However, plaintiffs had not satisfied their burden to show sufficient anticompetitive effect to succeed on their motion. Even assuming a relevant product market limited to the online sale of books, the court held that Borders’ de minimis market share of about 1% meant that, as a matter of law, its acquisition by Amazon would not substantially reduce competition.

February 2004

Evanston Northwestern Healthcare Corporation’s Acquisition of Highland Park (hospitals) - In February 2003 the FTC filed an administrative complaint challenging the January 2000 acquisition of Highland Park Hospital (" Highland Park") by Evanston Northwestern Healthcare Corporation ("ENH") under both Section 7 of the Clayton Act and Section 5 of the FTC Act. The transaction had combined ENH’s Evanston and Glenbrook hospitals, both located in Cook County, Illinois, with Highland Park, the nearest competitive hospital to the north. The FTC alleged that the transaction led to actual anticompetitive effects in a relevant product market defined as acute care inpatient hospital services sold to private payers (including commercial payers, managed care plans, and self-insurance plans) in a relevant geographic market defined as areas directly proximate to the three hospitals and contiguous geographic areas in northeast Cook County and southeast Lake County, Illinois. The FTC alleged that as a result of the merger, ENH established a strategy of negotiating with private payers on behalf of all three hospitals as a single system, and was able to impose price increases as high as 190% on its major customers. Additionally, the FTC challenged under Section 5 of the FTC Act ENH’s price negotiation post-merger on behalf of independent physicians not employed by ENH’s Medical Group, who were previously affiliated with Highland Park. Among the FTC’s requested remedies are (i) divestiture of Highland Park, (ii) a ban on ENH’s future re-acquisition of Highland Park, and (iii) a prior notice requirement from ENH to the FTC for acquisitions of any hospitals or health care facilities in relevant markets that overlap with ENH’s existing hospitals or health care facilities.

January 2004

Waste Management Assets Acquisition from Allied Waste (waste hauling) - On September 16, 2003, the Department of Justice filed a Complaint and Consent Decree in U.S. District Court in Washington, D.C. concerning Waste Management's acquisition of stock and assets located in Broward and Palm Beach Counties, Florida from Allied Waste Industries. In its Complaint, the DOJ alleged that the acquisition would lesson competition for the hauling of small container commercial waste in "open areas" of Broward County (areas not covered by a municipal franchise). The DOJ alleged that the acquisition would reduce the number of firms capable of providing small container hauling services in this market from three to two, with the combined

company having a market share of over 68%. The Consent Decree requires Waste Management to divest the Allied assets used on eleven commercial hauling routes. While required to hold these assets separate pending their divestiture, the Decree does not require an upfront buyer.

Sonoco Products Company/Pasco Beverages Company (frozen juice can manufacturers) - The nation's two largest frozen-juice can manufacturers agreed to abandon their proposed can-making equipment deal in October 2003 after DOJ expressed concerns about the possible competitive effects of the transaction. Together, the parties to the proposed transaction produce more than 90 percent of the composite frozen juice cans sold each year.

First Data's Acquisition of Concord EFS (PIN debit network services) - On December 15, 2003 the Department of Justice reached a settlement with the First Data Corporation ("First Data") and Concord EFS, Inc. ("Concord EFS") that allows First Data to proceed with its $7 billion acquisition of Concord EFS. Pursuant to this settlement, First Data must divest its 64% interest in the NYCE Corporation ("NYCE") to a buyer acceptable to DOJ. The transaction had been the subject of a complaint filed by DOJ and the attorneys general of Connecticut, District of Columbia, Illinois, Louisiana, Massachusetts, New York, Ohio, and Texas (hereinafter "Plaintiffs") on October 23, 2003 in the United States District Court for the District of Columbia. In this action, Plaintiffs alleged that the transaction would have combined Concord's STAR and First Data's NYCE PIN debit networks. STAR and NYCE were, respectively, the first and third largest competitors in a relevant product market defined as the provision of PIN debit network services. This market involves point-of-sale merchant transactions in which consumers purchase goods or services using a debit card and entering a PIN number. The transaction is electronically routed over a network like STAR or NYCE to the consumer's bank, where the transaction is paid for from funds available in the purchasing consumer's bank account. Plaintiffs distinguished this market from purchases routed over signature-based debit networks (where a consumer electronically signs to verify a transaction instead of entering a PIN number) based on the lower costs and enhanced operability of PIN networks. The relevant geographic market was defined as the United States. Plaintiffs alleged that the transaction would have reduced the number of competing PIN debit networks from four to three, with the combined STAR/NYCE network having a market share of at least 45%. Plaintiffs alleged that this increase in concentration could lead to higher fees paid by merchants to access PIN debit networks, which, in turn, would be passed on to consumers in the form of increased prices for goods and services. Plaintiffs noted a recent history of rising fees as consolidation occurred among PIN debit networks. Plaintiffs also alleged that the STAR and NYCE networks were next best substitutes for merchants such as grocery stores and mass merchandisers, and that an internal merger document claimed the transaction would allow the combined company "more leeway to set market pricing." While many merchants subscribe to all competing PIN debit networks, the reduction in the number of these networks from four to three allegedly would reduce merchants' ability to play competitors off against one another for reduced fees or to threaten to drop one network in response to a fee increase.

Dyno Nobel Inc./El Paso Corporation (ammonium nitrate) - DOJ announced on December 2, 2003, that it is requiring Dyno Nobel Inc. to divest its 50 percent interest in an industrial grade ammonium nitrate (IGAN) production facility in order to proceed with its planned acquisition of ammonium nitrate production assets from El Paso Corporation. IGAN is an essential ingredient in the production of nearly all blasting agent explosives used commercially in industries such as mining and construction. DOJ defined the relevant product market as IGAN. DOJ defined the

relevant product market as Western North America. If the transaction had been allowed to proceed, Dyno Nobel and El Paso would have controlled about 90 percent of IGAN sales in Western North America. Total sales of IGAN in Western North America are approximately $150 million a year.

Atlantic Coast Airlines Holdings, Inc. v. Mesa Air Group, Inc., Civil Action No. 03-2198 (RMC) (D.D.C. December 18, 2003) (feeder airline service) - Judge Collier of the District Court of DC granted Atlantic Coast's motion for a preliminary injunction preventing Mesa from selecting board members and effectively acquiring Atlantic Coast ("ACA"). ACA was a feeder airline to United at Dulles Airport in Wash, DC. ACA operated under a code sharing arrangement in which it operated under the United Express banner. United and ACA could not negotiate successfully a code-sharing renewal. Following breakdowns of the negotiations ACA decided to begin a low-cost carrier out of Dulles Airport. Mesa, another regional carrier (not near Dulles) decided to take steps to acquire ACA. If successful, Mesa would not have operated ACA as a low-cost regional carrier, instead, it would have operated ACA as a United feeder airline as United Express. ACA sued Mesa, alleging that the attempted takeover violated the Securities laws, and Section 1 of the Sherman Act and Section 7 of the Clayton Act. In denying the motion under Section 7, Judge Collier held that ACA had not alleged antitrust injury because: (1) as a target of the takeover ACA would have benefitted from the alleged harm; and (2) Mesa did not lose its independent decision-making authority because it would have approved the takeover. In contrast, Judge Collier held that ACA did have standing and alleged antitrust injury under Section 1 of the Sherman Act. The court also found that eliminating a potential entrant constituted antitrust injury and justified preliminarily enjoining the merger.

December 2005

United States of America v. UnitedHealth Group Inc. and PacifiCare Health Systems Inc. Case No. 1:05CV02436 (Commercial Health Insurance)

November 2005

Johnson & Johnson's Acquisition of Guidant Corporation (drug eluting stents, endoscopic vessel harvesting devices, and proximal anastomotic assist devices) - On November 2, 2005, the FTC announced it had accepted for public comment a consent order settling charges that Johnson and Johnson's ("J&J") $25.4 billion acquisition of Guidant Corporation would violate Section 7 of the Clayton Act and Section 5 of the FTC Act. The FTC's complaint alleged that the acquisition would eliminate actual or potential competition in the markets for the research, development, manufacture and or sale of (i) drug eluting stents; (ii) endoscopic vessel harvesting devices; and, (iii) proximal anastomotic assist devices. Because of FDA requirements, the relevant geographic market for all three products is the United States. The FTC's investigation found that J&J and Guidant were two of only three competitors in the markets for endoscopic vessel harvesting devices and proximal anatomotic assist devices, accounting for over 95% of the sales in the U.S. market for each product. (J&J had an exclusive right to distribute a proximal anatomotic assist device developed and manufactured by Novare.) In addition, the FTC's investigation showed that Guidant was one of three firms positioned to enter the market for drug eluting stents, a market presently supplied only by J&J and Boston

Scientific; in addition, it was the only anticipated entrant with the ability to offer a Rapid Exchange version of a drug eluting stent. (Guidant was presently licensing J&J's use of Guidant's technology.) Entry into each of the three markets was likely to require more than two years; this is largely, but not exclusively, a function of significant regulatory requirements and limitations on access to intellectual property rights. To resolve the FTC's concerns, J&J was required to (i) grant a non-exclusive, irrevocable, and transferable, license to allow a third party to make and sell drug eluding stents with a Rapid Exchange delivery system; (ii) divest J&J's endoscopic vessel harvesting product line; and (iii) terminate its agreement to distribute Novare's proximal anastmotic assist device. (The FTC anticipated that it would take Novare no more than 2 months to find a new distribution partner.) In keeping with an apparent general requirement, the agency required J&J to identify the licensee of the drug eluding stent prior to Commission acceptance of such a remedy. The consent order also required J&J to enter into a two year supply agreement with the purchaser of the endoscopic vessel harvesting product line, if necessary.

Department of Justice Closes Stock Exchange Merger Investigations - On November 16, 2005, the Department of Justice Antitrust Division announced the closing of its investigations of the proposed acquisition of Instinet Group Inc. ("Instinet") by The NASDAQ Stock Market Inc. ("Nasdaq") and the proposed merger of the New York Stock Exchange Inc. ("NYSE") and Archipelago Holdings Inc. ("Archipeligo"). NYSE announced that it would acquire Archipeligo, which operates ArcaEx, a large all-electronic stock market on April 20, 2005. Nasdaq’s announced its intent to acquire Instinet, an institutional brokerage and electronic trading network previously controlled by the Reuters Group, on April 22, 2005. Following these announcements several enterprises, including regional exchanges such as the Boston Stock Exchange and the Philadelphia Stock Exchange, and others including BATS Trading Inc., announced their intent to enter and compete in the equity trading facilities services, listing services, and/or the market data service industries. The Antitrust Division’s investigation focused on the issue of market entry, specifically whether the announced entries "will be sufficient to resolve any competitive concerns raised by the transactions." The conclusion reached by the Antitrust Division was that "the imminent entry of these enterprises should result in additional, viable alternatives to the two merged firms sufficient to ensure that the markets remain competitive." Based on this determination, the Antitrust Division terminated its investigation.

October 2005

DaVita Inc.'s Acquisition of Gambro Healthcare Inc. (Outpatient Dialysis Services) - On October 4, 2005, the FTC announced it had accepted for public comment a consent order settling charges that Davita Inc.'s $3.1 billion acquisition of Gambro Healthcare Inc. would eliminate competition in the market for outpatient dialysis services. The FTC identified 35 metropolitan areas in 8 states plus Washington D.C., where the merger would eliminate actual and substantial competition between the two parties, and/or allow the merged entity to raise prices unilaterally. In those 35 areas, the merger would have resulted in a merger to monopoly in 11, to a duopoly in 13, and, in the remaining 11 markets, post merger HHIs in excess of 4000, and changes in the HHI of at least 800. The Commission found that entry into the relevant market was not likely to be timely or sufficient to counteract the likely competitive effects of the transaction, with the primary barrier to entry being the limited availability of nephrologists with an established referral stream. Additional entry barriers included, in some areas, limited growth in the relevant patient base, an unfavorable regulatory climate, wage rates for nurses, and the

level of managed care. To resolve the FTC's concerns, Davita was required to divest, prior to acquiring Gambro, 69 outpatient dialysis clinics. Davita divested the clinics to Renal Advantage, a newly formed company whose management, according to the FTC, "has extensive experience operating, acquiring and developing outpatient dialysis clinics." Davita was also required to terminate two management services agreements, whereby it managed outpatient dialysis clinics for third parties. Additional provisions of the consent agreement give Renal Advantage the opportunity to interview and hire employees affiliated with the divested facilities; prevents Davita from offering incentives to those employees to decline Renal Advantage's offer of employment; prevents DaVita from contracting with the medical directors affiliated with the divested clinics; and, requires Davita to provide advance notice to the Commission of plans to acquire dialysis clinics in the 35 markets identified in the Commission's complaint.

Administrative Law Judge Orders Evanston Northwestern Healthcare Corporation to Sell Highland Park Hospital (General Acute Care In-Patient Services) - Evanston Northwestern Healthcare Corporation (ENH), located in Evanston, Illinois, must sell Highland Park Hospital ( Highland Park) within 180 days, under the terms of an initial decision and order issued by Chief Administrative Law Judge Stephen J. McGuire on October 17, 2005. ENH was formed in January 2000, as a result of Evanston Hospital ( Evanston) and Glenbrook Hospital’s (Glenbrook) acquisition of Highland Park, which is located on Chicago’s North Shore. According to the ALJ’s decision, which upheld Count I of an administrative complaint issued by the FTC in February 2004, ENH’s acquisition of Highland Park has resulted in "substantially lessened competition" and higher prices for insurers and healthcare consumers for general acute care inpatient services sold to managed care organizations in the geographic market defined by the ALJ. In January 2000, ENH acquired Highland Park in a transaction valued at more than $200 million. The acquisition combined ENH’s Evanston and Glenbrook Hospitals, located in Cook County, Ill., with Highland Park, the nearest hospital to the north. With Highland Park added to its existing hospitals, ENH became a more significant provider of health care services to payers who needed hospital access in northeast Cook County and southeast Lake County, Ill. The administrative complaint alleged that following the acquisition, ENH was able to raise its prices far above price increases of other comparable hospitals as a result of the transaction. According to the complaint, ENH’s acquisition of Highland Park resulted in significantly higher prices charged to health insurers, and therefore higher costs to insurance purchasers and hospital services consumers. The complaint alleged that the merger violated the Clayton Act, based on an analysis conducted under the Horizontal Merger Guidelines and on the actual competitive effects, in the form of higher prices actually charged by ENH after the merger. The complaint contemplated a remedy to restore competition to the benefit of consumers seeking competitively priced health care. In the order accompanying the initial decision, the ALJ wrote that "divestiture is the most effective and appropriate remedy" to address the anticompetitive effects of ENH’s acquisition of Highland Park. Accordingly, he ruled that no later than 180 days from the date the divestiture requirements of the order become final, ENH must divest and convey the "Highland Park Hospital Assets" to a Commission-approved buyer and in a Commission-approved manner. In addition, he ordered ENH to comply with all terms of the divestiture agreement approved by the Commission and to cooperate with the acquirer to ensure the hospital assets are maintained as competitive pending their divestiture. The order also provides that for up to a year after the divestiture, ENH must provide transitional services to the acquirer to ensure the hospital remains competitive in the marketplace. It also contains terms concerning the transfer and recruitment of employees between ENH and Highland Park during the divestiture process. Finally, the order requires that ENH distribute the order to selected officers and employees, states that the Commission may appoint a monitor to ensure the divestiture is completed successfully, and provides that if ENH has not divested the

Highland Park Hospital Assets within the time required, the FTC may appoint a divestiture trustee to accomplish the sale to a Commission-approved buyer.

Justice Department Requires Divestitures in Cal Dive International’s Acquisition of Stolt Offshore (Saturation Diving Services) - On October 18, 2005, the Department of Justice announced that it would require Cal Dive International Inc. ("Cal Dive") to divest certain saturation diving assets in order to proceed with its acquisition of assets from Stolt Offshore Inc. and S&H Diving LLC (collectively "Stolt"). The Antitrust Division filed a civil suit alleging that Cal Dive’s proposed acquisition of the saturation diving support assets of Stolt could substantially lessen competition in the provision of saturation diving services in the United States Gulf of Mexico. At the same time, the Justice Department filed a proposed consent decree that, if approved, would resolve the lawsuit and the Antitrust Division’s competitive concerns. As described in the Antitrust Division’s complaint, saturation diving providers located near the Gulf of Mexico largely serve entities engaged in offshore oil and gas development and production and facilitate "subsea construction projects, [] subsea inspection, maintenance and repair services, and [] recovery and salvage [efforts] after structures are damaged by weather or accident." Saturation diving operations are conducted using airtight chambers aboard diving vessels, permitting saturation divers to work for prolonged periods and at much greater depths than surface divers, who are limited to shallow depths and are required to go through a decompression process following each dive. Because neither surface diving nor alternative underwater technologies provide viable substitutes for saturation diving, the relevant product market is defined in the complaint as the market for saturation diving services. The Antitrust Division also indicates that the relevant geographic market is limited to the United States Gulf of Mexico, because it is "unlikely that a sufficient number of saturation diving services operating outside of the United States Gulf of Mexico would bid their services in this market such that a price increase [by service providers located near the United States Gulf of Mexico] would be unprofitable." The Antitrust Division’s complaint states that the market for saturation diving services in the United States Gulf of Mexico is "highly concentrated," with Cal Dive and Stolt constituting two of only three major providers and that the combined company would enjoy "more than half of the capacity in the market." Moreover, the two companies are particularly close competitors, viewed by customers as similar in size, vessels, experience and reputation for safety. Finally, the Antitrust Division asserts that new entry is unlikely. For these reasons, the Antitrust Division charges that the transaction would "increase the likelihood of unilateral action by Cal Dive to increase prices and diminish the quality and quantity of services, or of coordinated action by the remaining players in the market to achieve the same ends." The proposed consent decree accompanying the complaint requires that Cal Dive divest a variety of saturation diving assets, and, for a period of three years, provide advance notice to the Antitrust Division before it acquires any saturation chamber that has been operated in or located in the United States Gulf of Mexico at any time since October 1, 2002, or any interest in any company that owns or operates such a saturation chamber.

United States v. Dairy Farmers of America, 426 F.3d 850 (6th Cir. 2005) (Manufacture and Distribution of Milk to School Districts) - In United States v. Dairy Farmers of America, Inc., the U.S. Court of Appeals for the Sixth Circuit held that an acquisition could violate Section 7 of the Clayton Act even if it did not confer control or influence over the target company. The court also held that the parties use of a so-called "fix-it-first" remedy for a consummated transaction did not render moot the government's challenge to the original acquisition agreement. The Department of Justice challenged DFA’s 2002 acquisition of a partial interest in Southern Belle, a milk processing plant in Kentucky. Because DFA already had a partial interest in another Kentucky milk processing plant, the government alleged that DFA's partial acquisition of

Southern Belle substantially lessened competition in the market for the manufacture, distribution, and sale of school milk in several school districts in Kentucky and Tennessee. DOJ alleged that the acquisition was a merger to monopoly in 47 school districts, and a merger to duopoly in 54 school districts. The district court granted summary judgment for DFA, finding that DFA did not control or influence Southern Belle, and that no lessening of competition was likely. (DFA had exchanged its voting interest for a non-voting interest after the DOJ filed its complaint.) The district court concluded that "based on the limited nature of DFA’s ownership interest in Southern Belle … the incentives and opportunities for collusion are not substantially greater by virtue of DFA’s dual ownership interests than they were prior to th[e] challenged acquisition." The Sixth Circuit reversed. As a threshold matter, the appellate court found that DFA had the burden of showing that the government's claim against the original agreement was moot. Under Supreme Court precedent, "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice, unless subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Because DFA had presented no evidence that it would not revert to its original agreement, the government's challenge to the original agreement was not mooted. As to the merits, the court held that control or influence over the target company was not needed to establish a Section 7 violation, and found that the government had presented sufficient evidence to survive summary judgment for both the original and revised agreement.

Justice Department Approves Verizon’s Acquisition of MCI Merger Subject to Divestitures (Voice and Data Telecommunications Services to Business Customers) - On October 27, 2005, The Department of Justice announced that it had cleared Verizon Communication’s acquisition of MCI, Inc. subject to certain divestitures. According to the Division’s complaint, Verizon and MCI are the only two firms that own or control a direct wireline connection to hundreds of buildings in the metropolitan areas of Washington-Baltimore; Boston; New York; Philadelphia; Tampa; Richmond, Virginia; Providence, Rhode Island; and Portland, Maine. In the absence of new entry, the merger would eliminate competition for facilities-based local private line and in the supply of voice and data telecommunications services to business customers in these locations. In addition to eliminating MCI as a provider of voice and data telecommunications services, the merger would eliminate MCI as a wholesale provider of local access for other carriers seeking to provide voice and data services. Entry on a sufficient scale to ameliorate the Division’s concerns was thought to be unlikely. Under the terms of the proposed settlement, Verizon must divest connections to 356 buildings in the various metropolitan areas, to a single buyer in each city, generally using long-term leases commonly used in the telecommunications industry (indefeasible rights of use). In its press release announcing the filing of the consent decree, the Division indicated that its investigation also considered numerous other product markets, including residential and long distance service, internet backbone service, and evaluated all overlaps between the merging parties. The Division’s investigation took into account competition from cable companies as well as emerging technologies such as voice over Internet protocol (VOIP). The Division also considered changing regulatory requirements such as the FCC’s Triennial Review Remand Order (TRRO) and efficiencies that the parties claimed would result from the mergers, noting evidence of "exceptionally large merger-specific efficiencies."

Justice Department Approves SBC’s Acquisition of AT&T, Subject to Divestitures (Voice and Data Telecommunications Services to Business Customers) - On October 27, 2005, The Department of Justice announced that it had approved SBC Communication, Inc.’s ("SBC") acquisition of AT&T Corp. ("AT&T") subject to certain divestitures. According to the Antitrust Division’s complaint, SBC and AT&T are the only two firms that own or control a direct wireline

connection to hundreds of buildings in the metropolitan areas of Chicago, Illinois; Dallas-Fort Worth, Texas; Detroit, Michigan; Hartford-New Haven, Connecticut; Indianapolis, Indiana; Kansas City, Missouri; Los Angeles, California; Milwaukee, Wisconsin; San Diego, California; San Francisco-San Jose, California; and St. Louis, Missouri. In the absence of new entry, the merger would eliminate competition for facilities-based local private line and in the supply of voice and data telecommunications services to business customers in these locations. In addition to eliminating AT&T as a provider of voice and data telecommunications services, the merger would eliminate AT&T as a wholesale provider of local access for other carriers seeking to provide voice and data services. Entry on a sufficient scale to ameliorate the Antitrust Division’s concerns was thought to be unlikely. Under the terms of the proposed settlement, SBC must divest connections to over 350 buildings in the various metropolitan areas to a single buyer in each city, generally using indefeasible rights of use ("IRUs"), which are long-term leases commonly used in the telecommunications industry. In its press release announcing the filing of the consent decree, the Antitrust Division indicated that its investigation also considered numerous other product markets, including residential and long distance service, internet backbone service, and evaluated all overlaps between the merging parties. The Antitrust Division’s investigation took into account competition from cable companies as well as emerging technologies such as voice over Internet protocol ("VOIP"). The Antitrust Division also considered changing regulatory requirements such as the FCC’s Triennial Review Remand Order (TRRO) and efficiencies that the parties claimed would result from the merger, noting evidence of "exceptionally large merger-specific efficiencies."

September 2005

The Proctor & Gamble Company's Acquisition of the Gillette Company (At-home Teeth Whitening Products, Adult Battery-Powered Toothbrushes, Rechargeable Toothbrushes, and Men's Antiperspirant/Deodorant) - On September 30, 2005, the FTC announced that it had approved, with conditions, The Proctor & Gamble Company's ("Proctor & Gamble") $57 billion acquisition of The Gillette Company ("Gillette"). The FTC alleged that the merger would lessen competition in the markets for the research, development, manufacture and sale of (i) at-home teeth whitening products, (ii) adult battery-powered toothbrushes, (iii) rechargeable toothbrushes, and (iv) men's antiperspirant/deodorant. The FTC found the merger would combine the only two, or the largest two, competitors in these markets. To resolve the agency's concerns, the FTC required the companies to divest (i) Gillette's Rembrandt at-home teeth whitening business, (ii) Proctor & Gamble's Crest SpinBrush battery-powered business, and (iii) Gillette's Right Guard Antiperspirant/deodorant business. The Commission also required Proctor & Gamble to amend its joint venture agreement with Philips Oral Healthcare, Inc. ("Philips") to allow that company to independently market and sell the IntelliClean rechargeable toothbrush. (Philips and Proctor & Gamble had a joint venture to develop and market the IntelliClean product; the merger would have reduced the combined company's incentive to support the IntelliClean product.) The FTC also investigated whether the merger would result in a lessening of competition in broader categories of merchandise, such as oral care or antiperspirant/deodorants, through an increased ability of the merged company to exploit its position as a "category captain" to exclude or disadvantage competitors. The investigation did not support this theory of competitive harm.

United States (For the Federal Trade Commission) v. Scott R. Sarcane - On September 26, 2005, a Connecticut-based hedge fund manager, Scott R. Sarcane, agreed to pay $350,000 in

civil penalties to settle charges that he had failed to comply with the Hart-Scott-Rodino Premerger Notification Act ("HSR Act"). A civil antitrust complaint, filed by the Department of Justice on behalf of the FTC, charged that Sarcane consummated four transactions without complying with the HSR Act's notice and waiting period requirements. Sarcane, through his control of the Durus Life Science Master Fund Ltd. ("Master Fund"), made acquisitions of Aksys Ltd. voting securities exceeding the HSR Act's then $50 million filing threshold, and shortly thereafter, made additional acquisitions of Aksys Ltd. voting securities that brought Sarcane's ownership interest above the 50 percent notification threshold. Sarcane crossed the $50 million threshold in February 2003, and the 50 percent threshold in April 2003. Sarcane was in violation of the HSR Act's notification and waiting period requirements with regard to the Aksys Ltd. acquisitions from Feb. 24, 2003 to May 2, 2005. In a second series of transactions, Sarcane, again through his control of the Master Fund, made acquisitions of Esperion Therapeutics, Inc. voting securities that exceeded the HSR Act's then $50 million filing threshold, and within several months made additional acquisitions of voting securities that brought Sarcane's ownership interest in Esperion Therapeutics, Inc. above the then $100 million notification threshold. Sarcane crossed the $50 million threshold in March 2003, and the $100 million threshold in June 2003. Sarcane was in violation of the of the HSR Act's reporting and waiting period requirements from March 24, 2003 through May 2, 2005. Sarcane faced a maximum penalty in the range of $16 million. In announcing the penalty, the FTC's Director to the Bureau of Competition noted that Sarcane's $350,000 fine should put hedge funds, their managers and securities traders on notice that they are not exempt from filing pre-merger notification filings. The Director also noted that, while the FTC took action against the fund manager, future enforcement actions in other cases could be brought against a hedge fund as well. Here, according to the complaint against Sarcane, another ultimate parent entity of the Master Fund, Durus Life Sciences Fund LLC, made corrective HSR filings in August 2003 for the transactions described above.

FTC v. Aloha Petroleum Ltd. and Trustreet Properties, Inc. (Gasoline Marketing and Retail Sale of Gasoline) - On September 6, 2005, the FTC requested that the Federal District Court for the District of Hawaii to dismiss the FTC's complaint seeking an injunction to block Aloha Petroleum Ltd.'s ("Aloha") $18 million acquisition of a half interest in the import-capable Barbers Point terminal and all of the retail gasoline assets of Trustreet Properties, Inc. on Oahu, Hawaii. (Aloha already owned the other half-interest in the Barbers Point terminal. ) The complaint, filed on July 27, 2005, alleged that the proposed transaction was likely to substantially lessen competition in the markets for: (1) the marketing of gasoline by bulk suppliers in Hawaii (in particular the sale of gasoline by bulk suppliers to nonintegrated retailers); and (2) the retail sale of gasoline on Oahu. The FTC requested that the complaint be dismissed after Aloha announced it would enter into a 20-year agreement granting another petroleum company, Mid Pac Petroleum LLC, rights to use the Barbers Point petroleum terminal to import virtually unlimited quantities of gasoline into Hawaii. The FTC stated that the agreement would make Mid Pac a significant competitor in the marketing of bulk supply gasoline on Oahu, and, therefore, restored competition that would have been lost if the transaction had been allowed to proceed unchallenged.

August 2005

Sprint's Acquisition of Nextel Communications, Inc. - On August 3, 2005, the DOJ announced the closing of its investigation into Sprint's proposed acquisition of Nextel. In its statement, the

DOJ indicated that its investigation showed that the merger of Sprint (the third-largest provider of wireless services in the United States) and Nextel (the fifth-largest provider) would not give the companies market power in the areas in which they compete. Purchasers of mobile wireless services will continue to have a number of other carriers from which to choose after the merger. The Division's investigation into relevant product markets was focused on mobile wireless telecommunications services that Sprint and Nextel currently offer, as well as on developing products such as advanced wireless broadband services where the companies are potential competitors. The Division focused its investigation on local and regional markets, "because customers ... choose among providers that offer ... service[s] where they are located and travel on a regular basis." The DOJ concluded that none of the theories of competitive harm it considered were ultimately supported by the facts. "Sprint-Nextel will have robust competitors post-merger in every local area in which they compete," including large national carriers and smaller, regional carriers. Because of this, the Division could not find substantial proof that the merged company would unilaterally exercise market power post-merger or that coordinated interaction among the merged company and other remaining providers was more likely, post-merger. According to the DOJ, the services of other wireless carriers and new wireless technologies should continue to provide alternatives for customers of the merging parties, and these alternatives collectively should prevent the merging companies from harming competition. In addition, the DOJ noted that, although the combined firm would be the largest holder of licenses within a certain spectrum band, because of changes in FCC regulations, the merger may allow the combined firm to offer nationwide service in the future.

Settlement with Waste Industries USA, Inc. - In a challenge to a small, previously consummated transaction, on August 8, 2005, the DOJ filed a civil lawsuit in U.S. District Court in Norfolk, VA, seeking to require Waste Industries USA, Inc. to divest certain commercial waste hauling assets and prevent Waste Industries from continuing certain anticompetitive contracting procedures. The Department said that the August 2003 acquisition by Waste Industries of waste-hauling assets from Allied Waste Industries, Inc. lessened competition for small container commercial hauling services in the region. According to the complaint, in August 2003, Waste Industries and Allied were two of only a few providers of waste collection services in a group of cities in Southeastern Virginia. The complaint alleged that the August 1, 2003 transaction reduced from four to three the number of significant firms competing for the collection of small container commercial waste, giving Waste Industries control of about 43 percent of that market. A second firm had control of 39 percent of the market. The DOJ found the market for such services to be highly local, thus, "[f]irms with operations concentrated in distant areas cannot easily compete against firms whose routes and customers are locally based." In addition, significant entry barriers exist – "a new firm must achieve route [customer] density similar to existing firms." "[A] new entrant generally requires several hundred customers in close proximity to construct an efficient route ... [and] the common use of price discrimination and long term contracts" often leaves too few customers available to a potential entrant. At the same time, the DOJ announced that it had reached a settlement that requires Waste Industries USA, Inc. to sell certain small container commercial waste hauling assets, including divestiture of certain small waste collection customers producing annual revenue of $780,000. In addition, Waste Industries was required to modify certain customer contracts, and to refrain from certain contracting practices in the Norfolk, Virginia area. Specifically, Waste Industries, for a period of five years, is required to offer all new and existing customers a contract with (among other terms) the option of a short initial term, no long term renewal obligation, and limited liquidated damage provisions. The proposed settlement, if approved by the court, would resolve the lawsuit and the Department's competitive concerns.

Federated Department Stores, Inc.'s Acquisition of the May Department Stores Company (Department and Specialty Stores) - On August 30, 2005, the FTC announced its decision to close its investigation of Federated Department Stores' ("Federated") $17 billion acquisition of the May Department Stores Company ("May"). After a six-month investigation of the proposed transaction, the Commission concluded that, while the combination of the two chains "will create by far the largest chain of so-called ‘traditional' or ‘conventional' department stores in the country" and will create high levels of concentration among conventional department stores in many parts of the country, "we have been unable to uncover any evidence that [the] merger will have any adverse effects on consumers. The Commission explained some of the factors that led it to conclude the transaction would have no adverse effects. First, the Commission concluded that department stores are not a distinct product market, but that the product market must include, at the very least, all department stores and all specialty stores that collectively sell substantially similar products to those offered by Federated and May. While "there is precedent for treating [conventional department stores] as a separate market" there has been "[a] rapid evolution of retail markets" and now, consumers have a variety of retail options outside department stores, including vertically integrated sellers of clothing (e.g. the Gap); consumer electronics chains (e.g. Circuit City); mass marketers (e.g. Wal-Mart); and internet outlets (e.g. Amazon.com). In addition, with "the overwhelming majority of department stores ... located in ... suburban shopping malls" ... "today's mall is ... a real competitor against traditional department stores." The Commission also stated that the investigation "found no evidence that [the parties] priced their goods strategically in relationship to each other," and that this "provides the most compelling, objective demonstration that these conventional department stores are not in a distinct product market." The Commission Statement indicated that the definition of the relevant geographic market was "complicated" because "the distance consumers are willing to travel depends heavily on the merchandise they want to buy" and thus, " there is an interrelationship between product market definition and geographic market definition. The FTC concluded that the relevant geographic market is at least as large as an MSA, but may be larger in some areas of the country. Finally, the FTC found no reason to believe that the merged entity was likely to be able to reduce non-price competition, and would "continue to compete against a large and diverse group of rivals that are regularly attempting to create innovative non-price methods to attract consumers." The acquisition was subject to investigations by a number of state attorneys general, and the merged entity had agreed to divest 75 stores in 72 mall locations, in which there was both a Federated and May department store.

July 2005

ALLTEL's Acquisition of Western Wireless (wireless services) - On July 6, 2005 the DOJ required ALLTEL to divest wireless assets in rural areas in three states ( Arkansas, Kansas, and Nebraska) in order to complete a proposed $6 billion acquisition of Western Wireless. The DOJ stated that the acquisition would have resulted in higher prices, lower quality, and diminished investment in network improvements for consumers of mobile wireless services in the rural areas identified. Specifically the divestitures included Western Wireless' mobile wireless services business, including spectrum and customers, in nine markets in Nebraska, six markets in Kansas and one market in Arkansas. In addition, ALLTEL is required to divest the Cellular One service mark under which Western Wireless operates in the 16 divestiture markets, as well as in almost all other areas in which they operate. The transaction is also subject to review by the FCC.

Novartis AG's Acquisition of Eon Labs (generic pharmaceuticals) - On July 19, 2005 the FTC required Novartis to divest all the assets necessary to manufacture and market generic desipramine hydrochloride tablets, orphenadrine citrate extended release (ER) tablets, and rifampin oral capsules in the United States to Amide within 10 days of the acquisition of Eon. The FTC stated that the transaction threatened competition in each of the three generic markets and that in all of the markets of concern there is only one other competitor. In addition to the divestiture of the generic drug assets to Amide, Novartis is required to enter into a supply agreement with Amide to enable Amide to market desipramine hydrochloride and orphenandrine citrate ER immediately following the divestitures and until it gains FDA approval to manufacture the products on its own. Novartis also must provide the technology assistance necessary to enable Amide to obtain FDA approval as quickly as possible for the two drugs. Because Amide currently contract manufactures rifampin oral capsules for Novartis no technology transfer or supply obligation for rifampin was deemed necessary.

Penn National's Acquisition of Argosy Gaming (casinos) - On July 27, 2005 the FTC accepted a consent agreement requiring Penn to divest Argosy's Baton Rouge casino to Columbia Sussex Corporation within four months of the order's becoming final in order to consummate the $2.2 billion acquisition of Argosy. The FTC stated that because Penn and Argosy now operate the only two casinos in Baton Rouge, the divestiture is necessary to preserve a competitive alternative. As defined in the FTC complaint, the casino services market includes the combination of slot machine, video poker machine, and table gaming, along with associated amenities such as parking, food and beverages, and entertainment. In addition, the FTC stated that new entry into this market is not likely to occur in a manner timely enough to replace the competition lost through Penn's acquisition, as there are barriers to such entry. For instance, Louisiana law limits the number of licenses to 15 river boat casinos, four racinos (race tracks with slot machines), and one non-Native American land-based casino. According to the FTC, all these licenses have been granted.

Aloha Petroleum's Acquisition of Hawaiian Gasoline Assets of Trustreet Properties (petroleum marketers) - On July 28, 2005 the FTC voted to authorize the staff to seek a temporary restraining order and preliminary injunction to block Aloha Petroleum's proposed $18 million acquisition of the 50 percent interest in an import-capable terminal and retail gasoline assets of Trustreet Properties on the island of Oahu, Hawaii. According to the FTC, the sub-HSR transaction would reduce the number of gasoline marketers and could lead to higher gasoline prices for Hawaii consumers. The FTC vote to challenge the proposed acquisition was 2-1-1 with Commissioners Pamela Jones Harbour and Jonathan D. Leibowitz voting yes, Thomas B. Leary voting no and Chairman Deborah Platt Majoras recused. The FTC worked closely with the Hawaii Attorney General's Office in investigating and deciding to prosecute this matter.

June 2005

Occidental's Acquisition of Vulcan Chemical (industrial chemicals) - On June 3, 2005 the FTC announced that it had concluded a proposed consent order that allowed Occidental Chemical Company's (OxyChem) to purchase the chemical assets of Vulcan Materials Company (Vulcan) provided Vulcan divests Vulcan's facility in Port Edwards, Wisconsin, and related assets within 10 days of its acquisition worth approximately $214 million subject to adjustments for changes in net working capital, plus future contingent payments projected to equal $145 million. The order required that these assets be divested to ERCO, an indirect subsidiary of Superior Plus Inc. in

Canada, or to an alternate FTC-approved purchaser within six months. According to the FTC's complaint, the proposed acquisition would violate Section 5 of the FTC Act and Section 7 of the Clayton Act, by reducing competition in the markets for the production and sale of KOH (potassium hydroxide), APC (anhydrous potassium carbonate), and potcarb (potassium carbonate). The FTC alleged that OxyChem and Vulcan are the sole producers of APC in the country, and for many years have been the primary direct competitors for these chemicals in the APC and larger potcarb market. The FTC further alleged that the proposed transaction would substantially lessen competition under both market definitions. Finally, to ensure that the Vulcan assets to be divested remain viable, competitive and ongoing until divestiture is completed, the Commission also issued an order to maintain assets. Both the order to maintain assets and the consent order prohibit the exchange of confidential information between Vulcan and Oxychem, and permits the Commission to appoint a monitor trustee to oversee Vulcan and OxyChem's compliance with its terms.

Chevron's Acquisition of Unocal (petroleum) - On June 10, 2005, the FTC announced that Unocal would stop enforcing its reformulated gasoline patents and would release them to the public. The FTC had focused on these patents for two reasons: first, the patents (related to the California Air Resources Board's reformulated gasoline regulations) could have imposed additional costs of over $500 million per year on California consumers, and second, in light of Chevron's proposed acquisition of Unocal, maintenance of these patents would have facilitated coordinated interaction among downstream refiners and marketers of CARB gasoline, which could lead to higher prices. The consent order stated that Chevron and Unocal would cease enforcing the CARB patents on the date of the merger, and would release them to the public thirty days thereafter.

Arch Coal's Acquisition of Triton Coal's North Rochelle Mine (coal) - On June 13, 2005 the FTC voted to close its investigation of Arch Coal's acquisition of Triton Coal's North Rochelle Mine. The FTC stated that “the public interest would not be benefited by an administrative trial in this instance.” The FTC also stated that neither the district court's factual findings nor its legal conclusions warranted continued administrative litigation. The vote to close the investigation and discontinue administrative action was 4-1, with Commissioner Pamela Jones Harbour dissenting.

In April 2004, the FTC voted to challenge the proposed acquisition, filing complaints before both a federal district court and an FTC administrative law judge. The case subsequently was heard before the U.S. District Court for the District of Columbia, which denied the FTC's motion for a preliminary injunction on the basis that the government had failed to show a likelihood of success on the merits of the claimed lessening of competition. The FTC then filed a motion for an injunction pending appeal in the U.S. Court of Appeals for the District of Columbia Circuit, and on August 20, 2004, the federal courts denied that motion. On September 10, 2004, the Commission withdrew the matter from administrative litigation. The action announced on June 13, 2005 concludes the FTC's law enforcement actions to enjoin the acquisition.

Valero's Acquisition of Kaneb (petroleum services) - On June 15, 2005, the FTC issued a consent order requiring Valero, the largest petroleum terminal operator and second-largest operator of liquid petroleum pipelines in the United States, to divest its rights to petroleum terminals in three geographical territories before Valero could acquire Kaneb Services and Kaneb Pipe Line Partners. The FTC stated that the divestitures in the greater Philadelphia area, Colorado's Front Range territory and in Northern California were necessary to maintain

competition for petroleum transportation and terminaling in those areas, as well as to avoid potential increases in bulk gasoline and diesel prices.

Omnicare's Tender Offer for NeighborCare (institutional pharmacies) - On June 16, 2005, the FTC announced the closing of its investigation of Omnicare's tender offer for NeighborCare. Omnicare is the largest institutional pharmacy (IP) in the United States. IPs deliver prescription drugs to residents of long-term care facilities - primarily skilled nursing facilities (SNFs) - and provide SNFs with pharmacy and related products and consulting services, including drug regimen reviews and a variety of compliance and oversight functions. After a thorough investigation of the proposed transaction, the FTC concluded that the evidence obtained during the investigation indicates that, under current market conditions, Omnicare's acquisition of NeighborCare would not likely result in unilateral effects or coordinated interaction among remaining IPs. The FTC also concluded that the relative ease of entry mitigated the likelihood of post-merger coordinated interaction. In addition, the FTC evaluated the transaction in light of significant changes that will flow from the Medicare Modernization Act in the health care market. Even though the FTC closed the investigation, the FTC indicated it could open an investigation if new facts arise that lead to a substantial reduction of competition.

May 2005

Reuters' Acquisition of Telerate (information services) - On May 24, 2005 the DOJ announced that Reuters Ltd. (Reuters) and Moneyline Telerate (Telerate) will restructure Reuters' planned acquisition of Telerate in order to alleviate the Department's antitrust concerns. The restructuring entails that Telerate will license to HyperFeed Technologies Inc its TRS software platform which is used to distribute and analyze financial information, and Active 8 which users need to interact with the TRS software platform. Both the Department and the European Commission's Directorate-General for Competition evaluated the transaction and proposed restructuring, and alleged that the originally proposed transaction would have reduced competition for these software platforms also known as market data distribution platforms. The Department concluded that the licensing agreement alleviates antitrust concerns because it “will enable HyperFeed to compete for Telerate's existing market data distribution platform customers and will preserve an alternative distribution platform for all customers.”

March 2005

Cytec's Acquisition of UCB S.A. (amino resins) - On March 1, 2005, the FTC announced that it had concluded a proposed consent order that allowed Cytec Industries, Inc. ("Cytec") to proceed with its $1.8 billion acquisition of the Surface Specialties Business of Germany's UCB S.A., provided Cytec divest UCB's Amino Resins Business to a Commission approved buyer within 6 months. The FTC's complaint alleged that the transaction would have substantially reduced competition in two distinct product markets: (1) amino resins for industrial liquid coatings, and (2) adhesion promotion in rubber. The geographic market was no broader than North America. The FTC alleged that for many years Cytec and UCB have been the two major competitors in these markets and that these companies compete with one another across a wide range of amino resin grades and applications in which customers have qualified their resins for use. New entry is difficult because entering firms would not be able to offer the range

of amino resin grades that Cytec and UCB have developed over the years or meet the high standards of their customers. The required divestiture includes manufacturing facilities, patents and other intellectual property, and the assignment of contracts relating to the amino resins business.

Federal Trade Commission v. Blockbuster Inc. - On March 4, 2005, the FTC filed a complaint in the United States District Court for the District of Columbia seeking an order prohibiting Blockbuster, Inc. ("Blockbuster") from acquiring any interest in Hollywood Entertainment Corporation (" Hollywood) until Blockbuster has substantially complied with the Hart-Scott-Rodino ("HSR") premerger notification requirements. This action arose from Blockbuster's pending $1 billion tender offer to acquire 100% of Hollywood's outstanding shares. Blockbuster and Hollywood are the leading providers of movie and video game rental outlets in the United States. The FTC's action, however, does not challenge the acquisition on substantive antitrust grounds, but on an alleged lack of substantial HSR compliance, specifically dealing with Blockbuster's response to the FTC's request for additional information and documentary material ("Second Request"). According to the FTC, Blockbuster certified compliance with the Second Request on January 12, 2005. However, the FTC's complaint alleges that the investigating staff later determined that Blockbuster had failed to provide complete and accurate responses to two specifications. Concerning a specification that required specific pricing data, the FTC alleges that a "programming error" resulted in over half of the original data set provided by Blockbuster to be inaccurate. Furthermore, in response to a specification that required data on late fees applied at each company store, the FTC alleged that Blockbuster's original response provided data for only about 9% of its retail outlets in the United States. Although Blockbuster subsequently provided complete and accurate data to both specifications, the complaint alleges that Blockbuster refused to recertify substantial compliance. According to the FTC, the delay in receiving complete and accurate data impeded its ability to conduct econometric analysis of the proposed acquisition's competitive effects during the HSR's second mandatory waiting period. The FTC further alleges that Blockbuster's announced intention to complete its acquisition of Hollywood in mid-March necessitated the timing of this action. Subsequently, the parties agreed to a court order under which Blockbuster would not acquire any interest in Hollywood before 11:59 p.m. on March 21, 2005.

February 2005

Cemex's Acquisition of RMC (ready-mix concrete) - On February 14, 2005, the FTC announced that it had concluded a proposed consent order that allowed Cemex S.A. de C.V. ("Cemex') to proceed with its $5.8 billion acquisition of the RMC Group PLC ("RMC"). Cemex and RMC are two of three suppliers of ready-mix concrete in Tucson, Arizona. According to the FTC, their combination would have further consolidated this concentrated market and facilitated coordinated anticompetitive conduct. To remedy these anticompetitive effects, the proposed decree requires Cemex to divest RMC's Tucson-area ready-mix concrete assets to an FTC-approved purchaser within 6 months.

January 2005

Chicago Bridge & Iron Company N.V., Chicago Bridge & Iron Company, and Pitt-Des Moines, Inc. - On January 6, 2005, the FTC ruled that Chicago Bridge & Iron Company ("CB&I") violated Section 7 of the Clayton Act and Section 5 of the FTC Act by acquiring certain Pitt-Des Moines, Inc. ("PDM") assets. The FTC found that the acquisition substantially lessened competition in four relevant product markets in the United States: 1) liquefied natural gas storage tanks, 2) liquefied petroleum gas storage tanks, 3) liquid atmospheric gas storage tanks, and 4) thermal vacuum chambers. In order to restore competition prior to the February 2001 acquisition of the PDM assets, the FTC ordered CB&I to create two separate, stand-alone divisions capable of competing in the relevant product markets and to divest one of those divisions within six months. Although a previous administrative trial ordered the divestiture of all the PDM assets, on appeal the full Commission determined that CB&I would be in the best position to create another viable entity to quickly compete in the relevant markets rather than a divestiture trustee. In order to create the two stand-alone divisions the order requires CB&I to divide its current customer contracts and to facilitate the transfer of employees so that each subsidiary has the necessary technical expertise. The FTC appointed a monitor trustee to oversee the divestiture, including the need for CB&I to provide technical assistance and administrative services to the acquirer. The FTC also reserved the right to appoint a divestiture trustee in the event that CB&I does not accomplish the divestiture in six months.

December 2006

Proposed Acquisition of Pfizer Inc.'s Consumer Healthcare Business by Johnson & Johnson's (FTC) - On December 12, 2006, the Federal Trade Commission announced its decision to challenge the terms of Johnson & Johnson's (J&J) $16.6 billion acquisition of Pfizer Inc.'s (Pfizer) Consumer Healthcare business proposed on June 25, 2006. The FTC's complaint alleges that the transaction as originally proposed would reduce competition in H-2 Blockers, Hydrocortisone Anti-itch Products markets, Night-time Sleep Aids, and Diaper Rash Treatments markets. H-2 Blockers are a class of drugs designed to prevent and relieve heartburn associated with acid indigestion. They act differently in the body than antacid tablets, liquids, and other products. J&J and Pfizer are the largest U.S. suppliers, and after the transaction as proposed, J&J would have over 70 percent of all OTC H-2 blocker sales in the country. Hydrocortisone Anti-itch Products are designed to reduce inflammation, redness, and swelling; Pfizer's Cortizone and J&J's Cortaid products are the two leading brands. Night-time Sleep Aids are non-prescription drugs that are used solely for the relief of occasional sleeplessness, and J&J (Simply Sleep) and Pfizer (Unisom) are the two largest manufacturers and suppliers. Diaper Rash Treatments are used to prevent and treat diaper rash and to protect sore or chafed skin from moisture and irritation. Pfizer's Desitin and J&J's Balmex constitute nearly half of all U.S. OTC diaper rash treatment sales. The FTC's consent order requires the divestiture of all assets related to: 1) Zantac H-2 blockers to Boehringer; and 2) Cortizone hydrocortisone anti-itch products, Unisom sleep-aids, and Balmex diaper rash treatment products to Chattem. Also, certain Pfizer managers who were involved in Zantac research and marketing are precluded from working on competing H-2 blocker products at J&J for two years.

Proposed Acquisition of SNC Technologies, Inc. by General Dynamics (FTC) - On December 28, 2006, the Federal Trade Commission announced its decision to challenge General Dynamics'

proposed $275 million acquisition of SNC Technologies, Inc. and SNC Technologies, Corp. (collectively, SNC). The FTC's complaint alleges that the deal would undermine competition by bringing together two of only three competitors providing the U.S. military with melt-pour load, assemble, and pack (LAP) services used during the manufacture of ammunition for mortars and artillery. The only other supplier of mortar and artillery melt-pour LAP services to the U.S. market, DZI, is currently using a facility that is slated for closure. Melt-pour LAP services are the final step in producing and delivering ammunition for mortars and artillery to the U.S. military. LAP services consist of filling mortar and artillery shells with molten TNT, assembling the components needed to finish the munitions, and packing the rounds for delivery. Each of the companies in the relevant market-SNC, American Ordnance, and DZI-provide LAP contract services to the U.S. Army. According to the FTC, after its acquisition of SNC, General Dynamics would own 100 percent of SNC, while at the same time retaining its 50 percent interest in American Ordnance. Under the terms of the consent order, General Dynamics is required to divest its interest in American Ordnance to a Commission-approved buyer within four months of completing its acquisition of SNC. Subsequently, the Commission approved a proposed divestiture to Day & Zimmerman, Inc. (DZI).

Service Corporation International/Equity Corporation International (FTC) - On December 29, 2006, the Federal Trade Commission allowed the addition of the Paragraph VIII to the 1999 order, which allows SCI to foreclose on the Memorial properties, but requires the properties to be held separately from SCI's other properties and divested within 60 days. The 1999 order resolved competitive concerns arising from SCI's proposed acquisition of Equity Corporation International (ECI), and required SCI to divest seven funeral homes and 13 cemeteries and contained a provision requiring SCI, for 10 years, to notify the FTC before acquiring an interest in a funeral home or cemetery in a market in which the divestitures were ordered.

November 2006

Proposed Acquisition of Alderwoods by SCI (FTC) - On November 22, 2006, the nation's two largest funeral home and cemetery chains have reached a settlement with the Federal Trade Commission. In April, Service Corporation International (SCI)-nation's largest chain of funeral homes and cemeteries, representing about 10 percent of all related U.S. revenues-and Alderwoods-the second largest chain, representing about 5 percent of all related U.S. revenues-entered into an agreement by which SCI would acquire all of the outstanding voting securities of Alderwoods for about $1.23 billion, including the assumption of debt. According to the complaint, the proposed acquisition would raise competitive concerns in 35 highly concentrated funeral service markets and 12 highly concentrated cemetery service markets. The settlement agreement requires SCI to sell 40 funeral homes and 15 cemeteries in 41 markets to acquirers approved by the Commission. Subsequently, Commission approved the following buyers: (1) two wholly owned subsidiaries of Carriage Services, Inc; (2) Legacy Holdings; (3) Keystone America, Inc.; (4) O'Hair & Riggs Funeral Services, Inc.; (5) Ivers & Alcorn Funeral Services, Inc. and Ivers & Alcorn Merced Funeral Services, Inc.; and (6) Kent Care, LLC. The agreement also requires that, in the six markets in which nine third-party funeral homes operate under Dignity Memorial agreements with SCI, until SCI has terminated the agreements or sold the eight Alderwoods funeral homes, SCI may not enter into or enforce any agreement or exchange information with its affiliates regarding actual, suggested, or future prices of funeral services.

October 2006

Proposed Acquisition of Southern Belle Dairy Co. LLC by Dairy Farmers of America Inc. (DOJ) - On October 2, 2006, the Department of Justice announced a settlement that resolved its antitrust concerns with the Dairy Farmers of America Inc.'s (DFA) acquisition of Southern Belle Dairy Co. LLC, by requiring DFA to divest its interest in Southern Belle. Dairy Farmers of America is a national milk marketing cooperative and is the largest dairy cooperative in the world. In April 2003, the Department's Antitrust Division and the Commonwealth of Kentucky filed a lawsuit in U.S. District Court, challenging DFA's acquisition. The Department's lawsuit charged that DFA's acquisition reduced competition because it gave DFA ownership interests in two dairies-the Southern Belle dairy and the nearby Flav-O-Rich dairy-that competed against each other for school milk contracts. As a result, the acquisition reduced the number of independent bidders for school milk contracts from two to one for 45 school districts in eastern Kentucky, and from three bidders to two for 55 school districts in eastern Kentucky and Tennessee. The federal district court initially dismissed the case, granting summary judgment for DFA. The Department then successfully appealed the dismissal and the case was remanded for trial. Before trial began, the Department and DFA reached an agreement, as a result of which DFA will sell its interest in Southern Belle to Prairie Farms Dairy Inc. The Antitrust Division has approved Prairie Farms as the buyer. The Commonwealth of Kentucky joined the Department in its settlement.

ULA Joint Venture (Boeing/Lockheed Martin) (FTC) - On October 3, 2006, the Federal Trade Commission announced its decision to intervene in a formation of the United Launch Alliance, L.L.C. between Boeing and Lockheed, which was announced in May 2005. United Launch Alliance (ULA) is a joint venture designed to consolidate manufacturing and development of the companies' expendable launch vehicles (ELV). The FTC's complaint alleged that by combining the only two suppliers of U.S. government medium to heavy (MTH) launch services the joint venture as originally structured would have reduced competition in the markets for MTH launch services and space vehicles. The Commission defined two relevant product markets: government MTH launch services and government space vehicles. For both product markets, the Commission determined that the relevant geographic market is the United States, as federal law and national security imperatives require that the government buy launch services and space vehicles from domestic companies. In the U.S. market for government MTH launch services, Boeing and Lockheed are the only competitors. In the U.S. market for space vehicles, three firms, Boeing, Lockheed, and Northrop Grumman account for the large majority of sales. The Department of Defense (DoD) informed the Commission that the creation of ULA will advance national security by improving the United States' ability to access space reliably. After thorough review, DoD concluded that the national security benefits of ULA would exceed the anticompetitive harm caused by the transaction. To allow the United States to obtain the national security advantages offered by ULA, the order was designed to address the ancillary competitive harms that DoD has identified without interfering with the national security benefits of ULA. The order required the following: (1) ULA must cooperate on equivalent terms with all providers of government space vehicles; (2) Boeing and Lockheed's space vehicle businesses must provide equal consideration and support to all launch services providers when seeking any U.S. government delivery in orbit contract; and (3) Boeing, Lockheed, and ULA must safeguard

competitively sensitive information obtained from other space vehicle and launch services providers.

Proposed Acquisition of BellSouth Corporation by AT&T Inc. (DOJ) - On October 11, 2006, the Department of Justice announced the closing of its investigation into the proposed acquisition of BellSouth Corporation by AT&T Inc. After on March 5, 2006, AT&T Inc. and BellSouth Corporation announced their agreement to merge in an all-stock deal valued at $67 billion, the Division conducted an extensive investigation. After investigating areas in which the two companies currently compete-including residential local and long distance service, telecommunications services provided to business customers, and Internet services-and the merger's impact on future competition for wireless broadband services, the Division concluded that the presence of other competitors, changing regulatory requirements and the emergence of new technologies in markets for residential local and long distance service indicate that this transaction is not likely to harm consumer welfare and the merger would likely result in cost savings and other efficiencies that should benefit consumers.

Proposed Acquisition of Fisher Scientific International, Inc. by Thermo Electron Corp. (FTC) - On October 17, 2006, the Federal Trade Commission charged that Thermo Electron Corporation's proposed $12.8 billion acquisition of Fisher Scientific International, Inc. would harm competition in the U.S. market for high-performance centrifugal vacuum evaporators (CVEs). High-performance CVEs are used primarily in combinatorial chemistry labs to process large collections of potentially biologically active molecules at the same time-a process known as parallel synthesis. High-performance and lower-performance CVEs are not considered interchangeable because high-performance CVEs can process hundreds of samples at a time, achieve higher evaporation rates, include specific capabilities to help prevent cross-contamination of samples, and are compatible with corrosive and environmentally sensitive solvents. Thermo and Fisher are the only two significant suppliers of high-performance CVEs in the approximately $10 million U.S. market for high-performance CVEs, accounting for approximately 30 percent and 70 percent market share, respectively. To settle the Commission's charges, Thermo is required to divest Fisher's Genevac division, which includes Fisher's entire CVE business, within five months of the date the consent agreement was signed. On December 5, 2006, following a public comment period, the Commission approved the issuance of final consent. On March 30, 2007, the FTC approved divestiture of the CVE assets to Riverlake Equity Partners, L.P. and to MVC Capital, Inc.

Regions Financial Corporation/AmSouth Bancorporation (DOJ) - On October 19, 2006, the Department of Justice announced that Regions Financial Corporation and AmSouth Bancorporation have agreed to sell 52 AmSouth branch offices with approximately $2.7 billion in deposits in Alabama, Mississippi, and Tennessee in order to resolve competitive concerns raised by the companies' proposed merger. The combination of Regions and AmSouth will create the largest bank in Alabama and Mississippi, the 2nd largest bank in Tennessee, and the 15th largest bank in the United States. Under the agreement, the companies will divest 39 branches with $2 billion in deposits in six Alabama markets, six branches with $304 million in deposits in four Mississippi markets, and seven branches with $408.2 million in deposits in seven Tennessee markets. The divestitures will include the consumer and commercial loans associated with the divested branches. The companies also have agreed that in selected areas where the merging firms overlap-in Alabama, Florida, Louisiana, Mississippi, and Tennessee-if a branch office is closed within three years of the merger, they will sell or lease the office to a

commercial bank-buyer so long as there is a bank-buyer offer that meets or exceeds the best offer from a non-bank buyer.

Proposed Acquisition of Pliva d.d by Barr Pharmaceutical, Inc. (FTC) - On October 20, 2006, the Federal Trade Commission announced its decision to challenge Barr Pharmaceutical, Inc.'s proposed acquisition of Pliva d.d for approximately $2.5 billion. The FTC's complaint alleges that the acquisition as originally structured would have eliminated current or future competition between Barr and Pliva in certain markets for generic pharmaceuticals treating depression, high blood pressure and ruptured blood vessels, and in the market for organ preservation solutions. The Commission has identified four product markets that likely would experience anticompetitive effects if the proposed acquisition was allowed to proceed unchallenged: (1) Trazodone hydrochloride, an antidepressant; (2) Triamterene/HCTZ, a combination product used to treat high blood pressure; (3) Nimodipine, for treatment of the symptoms resulting from a ruptured blood vessel in the brain; and (4) organ preservation solutions, used during the harvest of donor organs to flush and preserve them prior to transplant. In each of the three generic drug markets, the FTC has determined that Barr and Pliva are two of a small number of suppliers offering the product, or are the only two future competitors. The market for organ preservation solutions also is highly concentrated. In settling the Commission's charges, Barr is required to sell its generic antidepressant trazodone and its generic blood pressure medication triamterene/HCTZ. Barr will also divest either Pliva's or Barr's generic nimodipine for use in treating ruptured blood vessels in the brain to Banner and Cardinal, both soft-gel capsule manufacturers. Finally, Barr is required to divest Pliva's branded organ preservation solution Custodial. The order requires Barr to divest all of the Barr branded organ preservation solutions to Apotex.

Proposed Acquisition of Andrx Corp. by Watson Pharmaceuticals, Inc. (FTC) - On October 31, 2006, the Federal Trade Commission announced its decision to challenge the terms of Watson Pharmaceuticals, Inc.'s proposed $1.9 billion acquisition of Andrx Corporation, a deal that would have led to competitive problems in the markets for 13 generic drug products: 1) hydrocodone bitartrate/ibuprofen tablets; 2) glipizide ER tablets; and 3) 11 oral contraceptive drugs. Hydrocodone bitartrate/ibuprofen is a combination of an opiate-based analgesic agent and a nonsteroidal anti-inflammatory drug (NSAID) ibuprofen. It is a generic version of Abbott Laboratories Inc.'s Vicoprofen and is used for the short-term management of acute pain. Glipizide ER is the generic version of Pfizer's Glucotrol XL. It corrects the effects of type 2 diabetes by stimulating the release of insulin in the pancreas, thereby reducing sugar levels in the body. Oral contraceptives are taken by mouth to prevent ovulation and pregnancy. Under the consent order settling the FTC complaint, Watson and Andrx will: (1) end Watson's marketing agreement with Interpham Holdings, Inc. and return all rights and agreements necessary to market generic hydrocodone bitartate/ibuprofen tablets back to Interpharm; (2) assign and divest the Andrx right necessary to develop, make, and market generic extended release glipizide (glipizide ER) tablets to Actavis Elizabeth, LLC, a subsidiary of The Actavis Group hf.; and (3) sell Andrx's rights and assets needed to develop and market eleven generic oral contraceptive products to Teva Pharmaceutical Industries, Inc.

Proposed Acquisition of New York radio stations from CBS Corp. by Entercom Communications Corp. (DOJ) - On October 31, 2006, the Department of Justice announced that it has suspended its investigation of Entercom Communications Corporation's proposed acquisition of New York radio stations from CBS Corporation so long as the companies sell three Rochester

radio stations as planned. Entercom informed the Department that it planned to divest the three Rochester stations in order to avoid the need for further investigation by the Justice Department and to comply with the Federal Communications Commission's (FCC) local ownership rules. The investigation arose from Entercom's proposed $262 million acquisition of 15 radio stations from CBS in Austin, Texas; Cincinnati, Ohio; Memphis, Tenn.; and Rochester, New York. The Department was investigating whether Entercom's ownership of eight radio stations in the Rochester area, accounting for more than 57 percent of radio advertising revenue, would reduce competition and raise the price of radio advertising in that market. Because the FCC's local ownership rules prohibit Entercom from owning more than five FM stations in one area and would require Entercom to sell two stations, Entercom advised the Department that it planned to sell CBS's WRMM-FM and WZNE-FM and Entercom's WFKL-FM to a third party. The Department determined that this sale would reduce Entercom's post-transaction share of Rochester radio advertising revenues to about 40 percent. Based on the reduced share of revenue and the characteristics of the radio stations being sold, the Department concluded that it would not have a reason to continue its investigation if the proposed sale is completed.

September 2006

Alltel's Acquisition of Midwest Wireless (DOJ) - After a ten month investigation, on September 7th the Antitrust Division announced it had filed a complaint and proposed settlement with regard to AllTel Corporation's $1.075 billion acquisition of Midwest Wireless. The Division alleged that the deal would eliminate competition in the market for "mobile wireless telecommunications services" in 28 counties in rural southern Minnesota. (Mobile wireless telecommunications services include both voice and data services provided over a radio network; because the large majority of customers use such services in close proximity to their home and place of work, they generally choose service providers from a relatively localized area.) The companies combined market share ranged from 60% to 95% (with post merger HHIs ranging from over 4700 to over 9100), with Midwest Wireless having the largest market share in the relevant service areas, and Alltel, in all but one instance, having the second largest share. In all the relevant markets, the merging firms were the only owners of 800 MHz band cellular spectrum licenses, which provide greater depth and breadth of coverage than the alternative 1900 MHz band PCS spectrum. DOJ alleged that the acquisition would increase the likelihood of unilateral action by the merged firm "to increase prices, diminish quality or quantity of services, and refrain from or delay making investments in network improvements." Entry into the relevant markets was found to be "difficult, time-consuming and expensive, requiring the acquisition of spectrum licenses and the build-out of a network." Expansion was unlikely as well, because, absent divestiture, the combined firm would own 100% of the available 800 MHz cellular spectrum, spectrum superior to the alternative 1900 MHz PCS spectrum. To proceed with its acquisition, Alltel was required to divest its mobile wireless telecommunications services business serving the affected 28 counties. A Preservation of Assets Order requires the parties to take certain steps to ensure that the assets to be divested (a) are preserved and operated as competitively independent, economically viable and ongoing businesses; (b) remain independent and uninfluenced by the parties. The proposed final judgment requires the divestiture of the to be divested assets within 120 days after the filing of the complaint, or five days after notice of the entry of the final judgment by the Court, whichever is later. Minnesota joined in DOJ's complaint and proposed final judgment.

August 2006

Dan Duncan/TEPPCO (FTC) - On August 18th, after an 18 month investigation, the FTC announced a challenge to Dan Duncan's consummated acquisition of a controlling interest in Texas Eastern Products Pipeline Company LLC (the general partner of TEPPCO), and the acquisition of 2.5 million limited partnership units of TEPPCO Partners, L.P. (The transaction, valued at approximately $1.2 billion, was not HSR reportable.) At the same time, the FTC announced it was accepting for public comment a consent order that would address its concerns. The FTC alleged that the transaction would lessen competition in the market for "salt dome storage for natural gas liquids" in Mont Belvieu, Texas. The transaction combined two of only four firms operating in the relevant market. (Duncan controls Enterprise Products Partners LP, a large midstream energy business offering NGL fractionation, transportation, terminaling and storage services.) The post merger HHI would exceed 6400, with a delta of more than 3000. Post merger, the combined firm would have a market share of 70%. The Agency alleged both unilateral effects and an increased likelihood of coordinated interaction among the remaining firms. (The FTC did not allege evidence of actual anticompetitive effects. The FTC opened its investigation into the transaction very soon after it was announced.) In addition, the FTC did not allege a Section 8 count; since the acquisition, the general partners of Enterprise and TEPPCO had maintained separate boards of directors and management teams. To address its concerns, the FTC required Duncan to divest TEPPCO's interest in an existing 50/50 salt dome storage joint venture, and related pipeline and other assets. The proposed order also required Duncan to provide the FTC with prior notice of any planned acquisitions, operatorship or management of any NGL storage facility in Mont Belveiu Texas for a period of ten years. The order contained several provisions regarding the operation of TEPPCO's TE Products Pipeline, including its continued operation on an "open stock" basis. In addition, if Duncan builds a new pipeline connected to any NGL storage facility he owns in Mont Belvieu, he must, at cost, connect the new pipeline to the divested Mont Belvieu Storage Partners NGL storage facility. The Commission must also receive advance notice of any new allocation procedures related to movement of NGLs on the TE Products Pipeline (originating in Mont Belvieu). The assets must be divested to a Commission approved buyer by December 31, 2006.

Mittal Steel Company Acquisition of Arcelor S.A. (DOJ) - In May, the Department announced it had accepted a "pocket decree" from Mittal Steel, requiring Mittal to divest certain assets, if, upon completion of DOJ's investigation of its acquisition (through tender offer) of Arcelor, the Division identified anticompetitive harm arising from the transaction. The use of a pocket decree allowed Mittal the opportunity to complete its tender offer in a timely manner, but allowed DOJ assurances it could obtain any necessary relief. (In fact, simultaneous with Mittal's announced tender offer for Arcelor, it announced it would sell Arcelor's Dofasco subsidiary.) On August 1, the Division filed a complaint and proposed final judgment alleging that Mittal's acquisition of Arcelor would eliminate competition in the market for the "development, manufacture, and sale of Tin Mill Products" in "the Eastern United States." Tin Mill Products are "finely rolled steel sheets, usually coated with a thin protective layer of tin or chrome" and are used to produce "food cans … aerosol cans, general line cans, pails, larger containers, metal buildings, and oil and fuel filter sheets." Mittal is the second largest supplier of Tin Mill Products to the Eastern United States, accounting for 31% of tonnage sold in 2005. Arcelor (with the later acquired Dofasco Inc.) accounted for approximately 6% of sales in the same geographic market. The merger would result in a two firm concentration ratio of 81%, and raise the HHI from approximately 3100 to 3500. DOJ alleged that the merger would "remove [pre-merger] constraints on coordination and increase the incentives of the two largest firms to coordinate

their behavior." Although Arcelor has a relatively small market share, it is "known for high quality and innovation" and "has substantial excess and divertible capacity" outside the US. The merger would eliminate innovation competition, and would remove constraints to a coordinated output reduction by the remaining large players because, absent Arcelor, the remaining domestic and foreign fringe producers did not have sufficient capacity to increase production sufficient to defeat an anticompetitive price increase or output reduction. Entry into the relevant market would not be likely, timely or sufficient to defeat coordination by the two largest firms. Expansion of shipments from foreign firms to the Eastern United States was unlikely, due to longer delivery lead times, additional shipping costs, trade barriers, and reluctance of foreign manufacturers to abandon existing markets. To settle the Division's concerns, Mittal agreed to divest Arcelor's Dofasco subsidiary. If Mittal is unable to divest Dofasco because of the defensive measures Arcelor took to fend off the hostile tender offer, it is required to divest, at DOJ's option, either of Mittal's Sparrow's Point, Maryland facility or its Weirton, West Virginia facility.

July 2006

Hologic Inc. Acquisition of Fischer Imaging Corporation (FTC) - On July 7th, the FTC announced a challenge to (and settlement regarding) Hologic's already consummated acquisition of Fischer Imaging. In its complaint, the FTC alleged that Hologic's 2005 acquisition of Fischer's "prone stereotactic breast biopsy systems" (SBBSs) business harmed consumers by eliminating its only significant competitor for the sale of prone SBBSs in the United States. (The acquisition was not subject to the notification provisions of the HSR Act.) A prone SBBSs is an integrated system that allows a physician to conduct a highly precise, minimally-invasive breast biopsy using x-ray guidance. While there are several other methods of performing breast biopsies, none of these methods were believed to be viable economic substitutes for prone SBBSs. Hologic and Fischer were two of three competitors in the market for the "production and sale of prone SBBSs"; the FTC found that they were each others primary competitors, and that the third competitor was not likely to replace the lost competition, because it did not have the resources or market acceptance to expand its U.S. sales significantly. (The United States was alleged to be the relevant geographic market.) Entry was not likely to occur in a timely manner because of the need to obtain FDA approval, the difficulty of gaining market approval for an unproven product, and the inability to overcome significant intellectual property requirements. In particular, the "strength and scope" of Hologic's patent portfolio, was found to be a "significant barrier to entry." To settle the Commission's charges, Hologic is required to sell the Fischer prone SBBS assets to Siemens AG, described as a leader in the business of medical imaging.

MediaNews Group Acquisition of the Contra Costa Times and San Jose Mercury News (DOJ) - On July 31, the Division announced it was closing its investigation into the proposed acquisition of the Contra Costa Times and the Mercury News by MediaNews Group, Inc. The Division's statement indicated it had focused its investigation on the transaction's potential effect in a market for the sale of local daily newspapers and newspaper advertising in Contra Costa and Alameda counties in northern California. The Division found that “only a relatively small number of readers and advertisers view MediaNews' papers … and the Contra Costa Times and Mercury News … as substitutes.” In addition, the Division concluded that “the transaction would enable MediaNews to achieve large cost savings,” allowing it to compete more effectively for readers and advertisers.

Linde AG Acquisition of The BOC Group, PLC (FTC) - On July 18th, the FTC announced its decision to challenge Linde AG's proposed $14.4 billion acquisition of The BOC Group plc. (The transaction was announced on March 6, 2006.) At the same time, the Commission accepted for public comment a proposed order addressing its concerns. The FTC's complaint alleged that the acquisition as originally structured would have had anticompetitive effects in the market for the manufacture and sale of (i) liquid oxygen; (ii) liquid nitrogen; and (iii) bulk refined helium. The relevant geographic markets for liquid oxygen and liquid nitrogen are limited because the gases can only be shipped economically from a supplier within 150 to 250 miles of a customer. The FTC identified the relevant geographic markets where the transaction would have anticompetitive effects as (i) the North East; (ii) the Chicago-Milwaukee Metropolitan Area; (iii) the Eastern Midwest, and (iv) the Southeast. In contrast, refined helium is a high value good and is transported on a worldwide basis; because foreign helium capacity and demand impact the pricing of domestically produced helium, the FTC alleged that the relevant geographic market for bulk refined helium was the world. The merging parties were only two of five producers of liquid oxygen, liquid nitrogen, and bulk refined helium. The FTC described the markets as “highly concentrated.” The relative homogeneity of the products and competing firms, and the availability of detailed market information were thought conducive to coordination, and detection and punishment of any deviations. In certain geographic areas, the merging parties were each others closest competitor for liquid oxygen and liquid nitrogen; in those markets, the transaction would also likely increase the ability of the merged entity to exercise unilateral market power. New entry into the markets for liquid oxygen and liquid nitrogen required a substantial cost commitment, and while a plant could be constructed within 2 years, it would not be economically justifiable to build a plant prior to obtaining contracts to sell a substantial portion of the plants capacity. The FTC found similar entry impediments in the market for bulk refined helium; in addition, entrants would likely have to locate a source for crude helium and build a refinery. To resolve the FTC's concerns, Linde agreed to divest (i) all of its merchant liquid oxygen and nitrogen producing business in the relevant geographic markets to a single purchaser within six months from the date the Consent Agreement becomes final, and (ii) various bulk refined helium assets, including helium source contracts, distribution assets, and customer contracts, to Nippon Sanso. Nippon Sanso is a large industrial gas supplier in Japan, and has a small presence in the United States; it is also one of the largest helium distributors. A buyer up front was required for the divestiture of the helium related assets because they did not constitute an on-going business. The Consent Agreement contains standard divestiture and monitor trustee provisions.

June 2006

McClatchy Company’s Acquisition of Knight Ridder Inc. (DOJ) - On June 27th, the Department of Justice announced a challenge to and settlement concerning McClatchy’s multi-billion dollar newspaper merger with Knight Ridder. The parties’ merger was announced on March 12 th. McClatchy publishes 12 daily newspapers throughout the United States; Knight Ridder publishes 32 daily newspapers. DOJ alleged that two of the merging firms newspapers, the Star Tribune and St. Paul Pioneer Press, were the primary competitors in the Minneapolis / St. Paul metropolitan area, and competed aggressively for readers. The only remaining competitor, the Stillwater Gazette, had a circulation of under one percent of newspaper readers. The result of the acquisition, according to DOJ, would be higher prices for local daily newspapers in Minneapolis/St. Paul and higher prices for advertising in local daily newspapers in the same

region. The parties addressed the concerns of the Department by agreeing to divest the St. Paul Pioneer Press.

Inco Limited Acquisition of Falconbridge Limited (DOJ) - In October 2005, Inco (a Canadian Corporation) made an offer to purchase all common shares of Falconbridge (a Canadian Corporation). Both companies are large, worldwide mining companies. On June 23rd, the Antitrust Division announced that it would require the merged entity to divest a nickel refinery in Norway as a condition to its clearance of Inco’s acquisition of Falconbridge. According to DOJ’s complaint, the transaction as originally proposed would have eliminated competition in the worldwide market for “high purity nickel.” High purity nickel is refined nickel of sufficient purity and chemical composition that it can be utilized in super alloys used for safety-critical applications. Super alloys are combinations of various metals, and include roughly 50%-70% nickel. Super alloys are primarily used in chemical processing plants, medical applications, industrial power generation and various aerospace applications. Certain products made from super alloys are considered safety-critical parts; for such parts, the super alloys must be as free as possible of certain trace elements that could comprise the safety and performance of the product. The complaint alleged that the merging parties each accounted for at least 40% of worldwide sales of high purity nickel. According to the complaint, while there would remain three additional companies in the world capable of producing high purity nickel, none would be substantial competitors to the merged entity because they suffered from capacity constraints or a limited ability to make high purity nickel on a consistent basis. To resolve the Division’s concerns, the parties agreed to divest a Falconbridge refinery in Norway and associated marketing assets to LionOre Mining International Limited. In addition, the settlement requires the merged entity to supply feedstock to LionOre for a number of years. LionOre was already involved in the mining and producing of nickel; the divestiture allows LionOre to become a fully-integrated nickel producer. Because of the continuing commitment to supply feedstock, the Division did not believe a “fix-it-first” remedy was sufficient.

Merger of Exelon Corporation and Public Service Enterprise Group Incorporated (DOJ) - On June 22nd, the Department of Justice announced that it would require Exelon and Public Service Enterprise Group to divest six electricity generating plants – two in Pennsylvania and four in New Jersey – in order to proceed with their $16 billion merger. The Department said that the transaction, as originally proposed, could result in higher prices for wholesale electricity in certain areas served by the PJM Interconnection. The PJM Interconnection is a private, non-profit organization that oversees the electricity transmission grid in the Mid-Atlantic region of the United States. Its members include transmission line owners, generation owners, distribution companies, retail customers, and wholesale and retail electricity providers. The transmission grid administered by PJM is the largest in the United States, providing electricity to approximately 51 million people in New Jersey, Pennsylvania, Delaware, Maryland, Virginia, West Virginia, the District of Columbia, and parts of North Carolina, Kentucky, Ohio, Indiana, Michigan, Tennessee, and Illinois. PJM oversees two auctions for the sale and purchase of wholesale electricity; a day a-head auction and a real time auction. At times, transmission constraints significantly narrow the generating units that can supply electricity to areas within the PJM control area. One such constrained area is “PJM East”; another is “PJM Central East.” DOJ alleged that the transaction would give the merged entity the ability to exercise market power by withholding its lower cost generation capacity and submitting higher cost bids to supply electricity when PJM East and PJM Central East were transmission constrained. This would have the effect of increasing prices in those constrained regions. The parties agreed to divest six generating plants totaling 5,600 megawatts of generating capacity to address the

Department’s concerns. In June 2005, the parties agreed to a settlement to address similar concerns of the Federal Energy Regulatory Commission. As of the date of settlement with DOJ, the parties were awaiting approval from New Jersey state regulators.

May 2006

Mittal Steel Company N.V Acquisition of Arcelor S.A (DOJ) - On May 12th, the Antitrust Division announced that it had accepted a “pocket decree” with Mittal Steel (a Netherlands company) concerning its attempted acquisition, through tender offer, of Arcelor (a Luxembourg company). Mittal and Arcelor are the two largest steel producers in the world. Under a pocket decree a transaction is allowed to proceed while the Division completes its investigation into the transaction; the acquiring party agrees to divest certain assets if the Division ultimately concludes the transaction will be anticompetitive. Pocket decrees are rarely used; they are only likely to be used when there is a time constraint and the continuing investigation would undermine the ability of the acquiring firm to complete its proposed acquisition. If the Division ultimately concludes that the transaction raises anticompetitive concerns, and Mittal completes its proposed acquisition of Arcelor, Mittal has agreed to divest Arcelor’s Dofasco Inc. subsidiary to ThyssenKrup AG. If Mittal acquires Arcelor and is unable to divest Dofasco, the agreement with DOJ requires Mittal to divest alternative assets to a buyer acceptable to the Division.

April 2006

Boston Scientific Acquisition of Guidant Corporation (FTC) - On April 20th, the FTC announced a consent agreement with Boston Scientific and Guidant Corporation, settling concerns about the transactions likely effect on competition in the market for research, development, manufacture and/or sale of: (i) Coronary Drug Eluting Stents (Coronary DESs); (ii) Percutaneous Transluminal Coronary Angioplasty (PCTA) Balloon Catheters; (iii) Coronary Guidewires; and, (iv) Implantable Cardioverter Defibrillators (ICDs). (The complaint identified the relevant geographic market as the United States.) Coronary DESs: The FTC’s complaint stated that Boston Scientific and Johnson and Johnson are the only two companies selling coronary DESs in the United States. Guidant is one of three companies involved in the research and development of coronary DESs (Abbott Laboratories and Medtronic are the other two); however, Guidant, along with Boston Scientific and Johnson and Johnson, are the only three companies with access to the intellectual property covering “rapid exchange” version of coronary DESs. The percentage of coronary DESs sold on rapid exchange delivery systems, presently 70%, is expected to continue to increase rapidly. The Commission alleged that the merger would result in a loss of potential competition in the market for coronary DESs and between competitors with access to rapid exchange delivery systems for coronary DESs. Percutaneous Transluminal Coronary Angioplasty Balloon Catheters: The FTC’s complaint stated that the merging parties are two of only four competitors in this market, and post-merger, would account for over 90% of sales in the U.S. The FTC alleged that the merger would result in a loss of competition between Boston Scientific and Guidant and increase the ability of the merged entity to unilaterally raise prices. Coronary Guidewires: The FTC found that Boston Scientific and Guidant accounted for 85% of this market, with the remaining three competitors (Johnson and Johnson, Abbott Laboratories, and Medtronic) each having a 5% share. The Commission alleged that the merger would result in a loss of competition between Boston Scientific and Guidant and increase the

ability of the merged entity to unilaterally raise prices. Implantable Cardioverter Defibrillators: The FTC complaint stated that only three companies – Guidant, Medtronic and St. Jude Medical – have significant sales of ICDs. A fourth entity, Cameron Health Inc. (Cameron), is involved in the research and development of ICDs and, according to the FTC “is poised to receive FDA approval to sell its ICD in the United States in the next two to three years.” Boston Scientific has an option to acquire Cameron, and Cameron is obligated to provide Boston Scientific with non-public, competitively sensitive information pursuant to the agreement to acquire Cameron. The FTC alleged that the merger would eliminate competition between Guidant and Cameron in the market for research and development of ICDs, as well as potential competition in the market for manufacture and sale of ICDs. In all relevant markets, the merger would have the effect of reducing research and development, and allow the merged firm to unilaterally raise prices. The complaint alleged that entry was not likely to occur in any of the markets in a timely or sufficient manner to constrain any post-merger price increase because of the need to obtain FDA regulatory approvals; obtain access to, or develop around, critical intellectual property related to the devices; and, the difficulty of marketing the devices. The parties were required to divest Guidant’s vascular business (which included its DES development program, and its PCTA balloon catheter and coronary guidewire products, to Abbott Laboratories. (Abbott Laboratories was required to divest its minority shareholdings in Boston Scientific.) The order also imposes limitations on the merged entities ability to obtain competitively sensitive information from Cameron, and otherwise limits its ability to exercise control over Cameron. Unless the merged entity acquires Cameron prior to expiration of its option to do so, the settlement requires that it divest its equity investment in Cameron within 18 months.

Qualcomm Incorporated Acquisition of Flarion Technologies, Inc. (DOJ) - On April 13th, the Department of Justice charged Qualcomm Incorporated and Flarion Technologies with violating their HSR waiting period requirement by allowing Qualcomm to assume operational control over Flarion prior to HSR clearance. DOJ alleged that the companies' merger agreement required Flarion to seek QUALCOMM's consent before undertaking certain basic business activities, such as making new proposals to customers. Further, although not required by the agreement, DOJ alleged that Flarion sought and followed QUALCOMM's guidance before undertaking routine activities, such as hiring consultants and employees. Engaging in these activities prior to HSR clearance was a violation of the waiting period requirements of the HSR Act, according to DOJ. To settle the Department’s concerns, the parties agreed to pay a fine of $1.8 million.

March 2006

Fresenius AG’s Acquisition of Renal Care Group (FTC) - On March 30th, the FTC announced it had accepted for public comment a consent order settling charges that Fresenius AG’s $3.5 billion acquisition of Renal Care Group would eliminate competition in the market for outpatient dialysis services. The FTC identified 66 geographic markets within 39 MSAs where the merger would eliminate actual and substantial competition between the two parties, and/or allow the merged entity to raise prices unilaterally. The FTC’s complaint did not define the geographic market with specificity, but said it was a function of patient’s unwillingness to travel long distances or for a long period of time. The Commission found that entry into the relevant market was not likely to be timely or sufficient to counteract the likely competitive effects of the transaction, with the primary barrier to entry being the limited availability of nephrologists with an established referral stream. Additional entry barriers included, in some areas, limited growth in

the relevant patient base, an unfavorable regulatory climate, wage rates for nurses, and the level of managed care. To resolve the FTC's concerns, Fresenius was required to divest 91 outpatient dialysis clinics as well as Renal Care Group’s joint venture interest in an additional 12 clinics. Fresenius divested the clinics to National Renal Associates, Inc. The order also requires Fresenius to give National Renal the opportunity to interview and hire employees affiliated with the divested facilities; prevents Fresenius from offering incentives to those employees to decline National Renal’s offer of employment; prevents Fresenius from contracting with the medical directors affiliated with the divested clinics; and requires Fresenius to provide National Renal with a license to Fresenius’ policies and procedures, as well as the option to obtain Fresenius’ medical protocols. Fresenius is also required to provide advance notice to the Commission of plans to acquire dialysis clinics in the 66 markets identified in the Commission's complaint.

Whirlpool Corporation’s Acquisition of Maytag Corporation (DOJ) - On March 29th, the Antitrust Division announced that it was closing its investigation into Whirlpool’s proposed acquisition of Maytag. The Division’s announcement stated that it had “focused its investigation on residential clothes washers and dryers, though it considered the impact of the merger across the entire range of products offered by the two companies.” The Division found that “[t]he combination of strong rival suppliers with the ability to expand sales significantly and large cost savings and other efficiencies that Whirlpool appears likely to achieve” made it unlikely that the transaction would harm consumers. In addition, according to DOJ, “the large retailers through which the majority of these appliances are sold--Sears, Lowe's, The Home Depot and Best Buy-- have alternatives available to help them resist an attempt by the merged entity to raise prices.”

Allergan Inc. Acquisition of Inamed Corporation (FTC) - On March 8th, the FTC announced it had accepted for public comment a settlement addressing its concerns about the anticompetitive impact of Allergan’s proposed acquisition of Inamed. The FTC alleged that the merger would likely reduce competition in the market for “research, development, manufacture and sale of cosmetic butulim toxin.” The FTC complaint stated that “Allergan dominates the market for the research, development, manufacture and sale of cosmetic botulinum toxins with its product Botox. Botox is currently the only botulinim toxin product approved by the FDA for cosmetic indications. Inamed plans to enter the market with its cosmetic botulinum toxin product Reloxin.” (Inamed had a license to develop and distribute Reloxin from Ipsen, Ltd., its manufacturer.) The merger was thought likely to eliminate potential competition in the relevant market, and increase the likelihood that the merged entity would delay or forego the launch of Reloxin. To address the FTC’s concerns, the parties agreed to return the development and distribution rights to Reloxin to Ipsen.

January 2006

Teva Pharmaceutical Industries Ltd.’s Acquisition of IVAX Corporation (FTC) - On January 23rd, the FTC announced that it would allow Teva’s proposed acquisition of Ivax (valued at $7.4 billion), provided the companies sell the rights and assets to manufacture and market 15 generic pharmaceutical products. The FTC identified the following relevant markets: the manufacture and sale of (1) Amoxicillin clavulanate potassium; (2) Cefaclor LA tablets; (3) Pergolide mesylate tablets; (4) Estazolam tablets; (5) Leuprolide acetate injection kits; (6) Nabumentone tablets; (7) Amoxicillin; (8) Propoxyphene hydrochloride capsules; (9) Nicardipine hydrochloride

capsules; (10) Flutamide capsules; (11) Clozapine tablets; (12) Tramadol/Acetaminophen tablets; (13) Glipizide & metformin hydrochlorie tablets; (14) Calcitriol injectables; and, (15) Cabergoline tablets. The complaint alleged that the relevant geographic market was the United States. In many of these markets, the merging entities were the only two, or two of only a very few competitors, offering generic versions in certain dosages. In those markets, the transaction would allegedly eliminate actual competition between the merging parties, allowing the merged entity to unilaterally raise prices or potentially result in coordinated interaction among the remaining participants in the market. In other markets, one or both of the merging parties was likely to enter the market soon; the merger would allegedly eliminate potential competition in those markets, and increase the likelihood that the merged entity would delay or forego the launch of a second or competing product. In one market, the FTC alleged that the transaction would eliminate two of only a limited number of participants capable of entering a “future market” for generic cabergoline tablets. (The patent for branded cabergoline expired in December 2005.) The parties resolved the Commission’s concerns by agreeing to divest (depending on the product) Teva or Ivax’s rights to manufacture and market the generic drug. The buyers of the divested assets were Barr Pharmaceuticals Inc., and Par Pharmaceutical Companies, Inc.

December 2007

Acquisition of Andrew Corporation by Commscope (DOJ) - On December 6, 2007, The Department of Justice announced that it reached a settlement requiring CommScope Inc. (CommScope) and Andrew Corporation (Andrew) to divest Andrew's minority interest in Andes Industries Inc. (Andes), in order to proceed with CommScope's $2.6 billion acquisition of Andrew. The Department said that the transaction, as originally proposed, would have substantially lessened competition in the development, manufacture, and sale of drop cable, which is coaxial cable used by cable television companies to connect their transmission systems to their customers' premises, and to the customers' equipment inside the premises. It also would have given CommScope the ability to appoint directors to the board of Andes, a substantial competitor, in violation of a law governing interlocking directorates between competing companies. Under the proposed consent decree, CommScope and Andrew must divest all of Andrew's stock ownership and other interests in Andes. Upon completion of the divestiture, neither CommScope nor Andrew will have any rights to appoint Andes directors or otherwise control or influence the business operations of Andes.

November 2007

Acquisition of Florida Rock Industries by Vulcan Materials Company (DOJ) - On November 13, 2007, the Department of Justice announced that it has reached a settlement that will require Vulcan Materials Company and Florida Rock Industries Inc. to divest eight quarries that produce coarse aggregate in Georgia, Tennessee and Virginia and one distribution yard in Virginia in order to proceed with their proposed $4.6 billion merger. Coarse aggregate, a type of construction aggregate, is crushed stone produced at quarries or mines. The Department said that, without the divestitures, the proposed acquisition likely would result in higher prices for purchasers of coarse aggregate in certain areas served by the quarries to be divested.

Acquisition of Organon BioSciences N.V. by Schering Plough (FTC) - On November 16, 2007, the Federal Trade Commission announced a complaint challenging Schering-Plough Corporation's proposed $14.4 billion acquisition of Organon BioSciences N.V. from Akzo-Nobel N.V., alleging that the deal would harm competition in the U.S. markets for the manufacture and development of three poultry vaccines. Under the terms of the consent order, Schering-Plough is required to divest the rights and assets necessary to develop, manufacture, and market live vaccines for the prevention and treatment in poultry of: 1) the Georgia 98 strain of infectious bronchitis virus; 2) fowl cholera due to Pasteurella multocida; and 3) MG to Wyeth's Fort Dodge division. These products are Schering-Plough's Avimune IB98, Intervet's CHOLERVAC-PM-1, and Schering-Plough's F VAX-MG, respectively. The assets to be divested include research and development, customer, supplier and manufacturing contracts, as well as all intellectual property (excluding trademarks) related to the three vaccines. In addition, Schering-Plough will provide Fort Dodge with the relevant vaccines for two years, under a supply and transition services agreement, while it obtains the necessary regulatory approvals to bring the vaccines in-house.

Acquisition of Pathmark Supermarkets by A&P (FTC) - On November 27, 2007, the Federal Trade Commission announced a complaint challenging The Great Atlantic & Pacific Tea Company, Inc.'s (A&P) proposed $1.3 billion acquisition of Pathmark Stores, Inc. The complaint charged that the proposed acquisition would result in reduced competition between the two supermarket firms in Staten Island, New York and Shirley, Long Island, New York. Under the terms of a consent order settling the Commission's charges, the companies must sell four of A&P's Waldbaum's supermarkets and one Pathmark supermarket in Staten Island, as well as one Waldbaum's supermarket in Shirley, Long Island, to Commission- approved buyers.

October 2007

Western Refining, Inc. /Giant Industries, Inc. (FTC) - On October 3, 2007, the Federal Trade Commission announced it will not continue with administrative litigation challenging Western Refining, Inc.'s acquisition of Giant Industries, Inc. The Commission voted to challenge the proposed acquisition in April 2007, filing complaints before both a federal district court and an FTC administrative law judge. After Commission's motion for a preliminary injunction was denied by the U.S. District Court for the District of New Mexico and subsequently upheld on appeal by the U.S. Court of Appeals, on June 7, 2007, the matter was withdrawn from administrative litigation in order to permit the Commission to assess the public interest in further proceedings. The Commission defined the relevant market as the bulk supply of motor gasoline, diesel fuels, and jet fuel (collectively "light petroleum products"). Relevant sections of the country included northern New Mexico, consisting of Rio Arriba, Taos, Mora, San Miguel, Los Alamos, Santa Fe, Valencia, Torrance, Bernalillo, Guadalupe, and Sandoval counties, where the merger would reduce competition among bulk suppliers of light petroleum products. Although the Commission strongly disagreed with the district court's view of the facts of this case and with many of its legal conclusions, after weighing all relevant factors, the Commission concluded that "continuing to pursue the case would not be in the public interest." Also, there are potential opportunities for new bulk suppliers to deliver gasoline to the Albuquerque area, thereby increasing competition and lowering gasoline prices in Northern New Mexico.

Acquisition of Disc-O-Tech by Kyphon (FTC) - On October 9, 2007, the Federal Trade Commission announced a complaint challenging Kyphon, Inc.'s (Kyphon) proposed acquisition of the spinal assets of Disc-O-Tech Medical Technologies, Ltd. and Discotech Orthopedic Technologies, Inc. (collectively Disc-O-Tech) as anticompetitive in the U.S. market for minimally invasive vertebral compression fracture (MIVCF) treatment products. These products are used to treat vertebral compression fractures (VCFs), which can cause extreme debilitating pain for some patients. VCFs can occur when one or more vertebrae collapse and are commonly caused by osteoporosis. In 1999, Kyphon introduced kyphoplasty, which is similar to vertebroplasty (the traditional treatment), but uses a technology that reduces the chance of bone cement leakage. Disc-O-Tech's Confidence system competes directly with Kyphon's higher-priced kyphoplasty product and uses highly viscous cement that makes it a safer alternative to vertebroplasty. While other companies are attempting to enter the MIVCF product treatment market, none of their products has the Confidence system's immediate prospects of success or ability to compete effectively with kyphoplasty. The complaint alleges that Confidence is Kyphon's main competitive threat and, absent the acquisition, would make significant inroads into Kyphon's near-monopoly position in this market. Under the terms of the consent order, the parties are required to divest all assets related to the Confidence system, including tangible and intellectual property, as well as any permits and licenses needed to make, distribute, and sell the Confidence system. The parties also must divest rights to certain of Disc-O-Tech's development efforts related to the system. If the acquirer requires additional assets not included in the divestiture package, the order would require Kyphon to provide a license to any other assets acquired from Disc-O-Tech to enable the acquirer to immediately enter the MIVCF treatment product market as a viable competitor.

United States v. Iconix Brand Group, Inc. (DOJ) - On October 15, 2007, Iconix Brand Group has agreed to pay $550,000 to settle charges that the company failed to produce certain documents before buying Rocawear, an acquisition requiring pre-merger review, the Department of Justice announced today. Iconix failed to submit documents required by the HSR Act, including a formal presentation made to its Board of Directors about the transaction and a less formal e-mail among officers and directors. In addition, when initially asked to review whether such documents existed, the company falsely reaffirmed that no such documents existed.

Abitibi-Consolidated Inc. and Bowater Inc.'s Proposed Merger (DOJ) - On October 23, 2007, the Department of Justice announced that it will require two of the nation's largest newsprint manufacturers-Abitibi-Consolidated Inc. and Bowater Inc.-to divest a newsprint mill in Arizona in order to proceed with their proposed $1.6 billion transaction. Newsprint is an uncoated groundwood paper made by a mechanical pulping process without the use of chemical additives, such as bleach. Newsprint can also be made, partly or entirely, from recovered fiber, such as old newsprint and old magazines. Because of the production process and lack of additives, newsprint is the lowest quality and generally least expensive grade of groundwood paper. Under the proposed consent decree, Abitibi and Bowater agree to divest Abitibi's newsprint mill in Snowflake, Arizona. In addition, the merged company will be required to notify the Department before acquiring an additional interest in any mill or machine that is currently jointly-owned by either Abitibi or Bowater with any third party, if the value of the acquisition exceeds $2 million.

Proposed Acquisition of MediaNews Group Inc. by Hearst Corporation's (DOJ) - On October 25, 2007, the Department of Justice's Antitrust Division announced that it has closed its investigation of Hearst Corporation's proposed acquisition of a newly created "tracking stock" of MediaNews Group Inc. (MNG). The acquisition, which was revised in response to antitrust concerns raised by the Department, would give Hearst approximately a 30 percent equity stake in MNG's newspaper businesses outside of the San Francisco Bay Area (Bay Area). Parties asserted that they had structured Hearst's proposed investment to give Hearst no equity interest in or influence over MNG's Bay Area businesses. The Division's investigation focused on whether the proposed investment would give one party an incentive to compete less vigorously in the Bay Area or would provide sources of influence by Hearst or MNG over the other's Bay Area activities. During the investigation, the parties modified the proposed transaction in an effort to mitigate antitrust concerns raised by the Department.

Acquisition of Saint Gobain Assets by Corning (FTC) - On October 26, 2007, the Federal Trade Commission announced a complaint challenging Owens Corning's proposed acquisition of the glass fiber reinforcements and composite fabric assets of Compagnie de Saint Gobain (Saint Gobain), charging that the deal would lead to reduced competition in the North American market for continuous filament mat (CFM) products. A unique glass fiber reinforcement product, CFM is an input in the production of non-electrical laminate, marine parts and accessories, and other products where its strength and durability make it the most cost-effective material to use. CFM increases the mechanical performance-such as stiffness and strength-of products, as well as their resistance to chemicals. The FTC contends that the market for CFM is highly concentrated and that for many years Owens Corning and Saint Gobain have been the primary competitors in the CFM market, with the two companies accounting for more than 90 percent of the CFM sold in North America. Under the terms of a consent order resolving the Commission's charges and allowing the deal to proceed, Owens Corning must divest its North American CFM business-along with related licenses and intellectual property-to AGY Holding Company within 10 days of completing its acquisition of the Saint Gobain assets. The EC and Mexico's Federal Competition Commission also are reviewing, or have already reviewed, this proposed transaction.

Acquisition of Dobson Communications Corporation by AT&T Inc. (DOJ) - On October 30, 2007, the Department of Justice announced that it has reached a settlement requiring AT&T Inc. (AT&T) to divest assets to address competition concerns in seven markets in Kentucky, Oklahoma, Missouri, Pennsylvania, and Texas, including rights to the "Cellular One" brand in order to proceed with its $2.8 billion acquisition of Dobson Communications Corporation (Dobson). The divestitures are required to assure continued competition in markets where the merger would otherwise result in a significant loss of competition. In three rural service areas (RSAs) in Kentucky and Oklahoma, AT&T and Dobson each hold one of the two cellular licenses and are the most significant competitors. In two RSAs in Missouri and Texas, AT&T has a minority equity interest in, and important control rights over, the primary wireless competitor to Dobson. The divestiture of the Cellular One brand and associated rights will ensure continued competition in two markets in Pennsylvania and Texas where a Cellular One licensee is the primary wireless competitor to AT&T.

September 2007

Proposed Acquisition of Two Fresenius Medical Care Holdings, Inc.'s Clinics by American Renal Associates, Inc. (FTC) - On September 7, 2007, the Federal Trade Commission announced a consent order settling charges that two dialysis clinic operators, American Renal Associates, Inc. and Fresenius Medical Care Holdings, Inc.-unlawfully restrained competition. The Commission, as a second ground, charged that ARA's proposed acquisition of two Fresenius clinics in Warwick, Rhode Island would substantially reduce competition for outpatient dialysis services in the Warwick/Cranston area. The relevant product market is the provision of outpatient dialysis services. End stage renal disease ("ESRD") is a chronic disease characterized by a near total loss of function of the kidneys, which in healthy people remove toxins and excess fluid from the blood. ESRD may be treated through dialysis, a process whereby a person's blood is filtered, inside or outside the body, by machines that act as artificial kidneys. Pursuant to the consent decree, ARA and Fresenius are prohibited from agreeing with any dialysis clinic operator to close any clinic or otherwise allocate any dialysis market, territory, or customer. Secondly, the order requires ARA to notify the FTC of its intention to acquire any dialysis clinic assets in the Warwick/Cranston area of Rhode Island-the relevant geographic market affected by the challenged acquisition proposal.

Proposed Acquisition of Germany's E. Merck oHG by Mylan Laboratories (FTC) - On September 27, 2007, the Federal Trade Commission announced its challenge of Mylan Laboratories' (Mylan) proposed $6.6 billion acquisition of Germany's E. Merck oHG (Merck), alleging that the transaction would result in significantly reduced competition for the sale and manufacture of five generic drugs in the U.S. currently produced by both companies. In conducting its investigation of the proposed acquisition, the Commission identified competitive overlaps in the U.S. markets for several generic drugs. They include: 1) acebutolol hydrochloride capsules, a beta blocker used to treat hypertension; 2) flecainide acetate tablets, an anti-arrhythmia drug used to treat heart problems; 3) guanfacine hydrochloride tablets, an alpha blocker used to treat hypertension; 4) nicardipine hydrochloride capsules, a calcium blocker used to treat hypertension; and 5) sotalol hydrochloride AF tablets, a beta blocker used to treat hypertension. Under the terms of the consent order, the companies must divest the rights and assets related to each of the relevant products to a Commission-approved buyer no later than 10 days after the acquisition is completed. Specifically, the order requires that Merck divest its product assets to Amneal, if the FTC determines that Amneal is an acceptable buyer.

FirstGroup plc/Laidlaw International Inc. (DOJ) - On September 27, 2007, in order to resolve antitrust concerns, FirstGroup plc will sell off a large school bus contract and associated assets in Alaska in order to proceed with its acquisition of Laidlaw International Inc. First Group and Laidlaw contract with school districts throughout the United States to provide school bus services. FirstGroup is the United Kingdom's largest bus operator with a bus division in the United States. Laidlaw Inc. is the largest school bus service company in the United States. As a result of the parties' decision, the Department's Antitrust Division has closed its investigation of the transaction. The investigation was closed under the Antitrust Division's "fix-it-first" policy based on the parties' decision to sell FirstGroup's Anchorage school bus business to Forsythe Transportation. The Anchorage School Board approved transfer of the contract to Forsythe on September 24, 2007.

Duke Energy/Spectra Energy Corp. /DCP Midstream, LLC (FTC) - On September 28, 2007, the Commission has approved a petition to reopen and modify an FTC order concerning Duke Energy Corporation, Spectra Energy Corp., and DCP Midstream, LLC. Under the order entered on May 5, 2000, Duke Energy and DEFS were required to divest 2,780 miles of gas-gathering pipeline in certain areas of Kansas, Oklahoma, and Texas, and to notify the FTC of future natural gas gathering or processing interests they intended to acquire in those areas. In December 2006, Duke Energy and DEFS notified the FTC that Duke Energy intended to spin off its natural gas business, including its 50 percent interest in DEFS to Spectra, a newly formed independent company, and that DEFS would then be renamed DCP Midstream, LLC. The respondents reported that the spin-off was completed in January, 2007 and that, as a result, Duke Energy no longer holds any interest in DEFS or any other natural gas assets in the relevant areas.

August 2007

Proposed Acquisition of K2 Inc. by Jarden Corporation (FTC) - On August 9, 2007, the Federal Trade Commission announced a complaint challenging Jarden Corporation's (Jarden) proposed $1.2 billion acquisition of sporting equipment manufacturer K2 Incorporated (K2), alleging that the deal would be anticompetitive and detrimental to consumers of monofilament fishing line. Monofilament fishing line is the most widely-used and least expensive type of fishing line. While other specialized types of fishing line, including braided (or super line) and fluorocarbon, appear to be growing in popularity, especially among avid anglers, the vast majority of fishing line purchases in the United States are of monofilament line. According to the Commission's complaint, Jarden has a very large share of the monofilament fishing line market, and K2 is its most significant competitor. The consent agreement requires the divestiture of assets related to K2's Cajun Line, Omniflex, Outcast, and Supreme monofilament fishing line products to W.C. Bradley/Zebco (Zebco) within 15 days after the acquisition is consummated. Further, it will require that certain staff who were substantially involved in the research, development, or marketing of the divested assets be precluded from working on competitive fishing line products at Jarden for two years.

June 2007

Proposed Acquisition of Brooks and Eckerd Pharmacies from Canada's Jean Coutu Group, Inc. by Rite Aid (FTC) - On June 4, 2007, the Federal Trade Commission announced it is challenging Rite Aid Corporation's proposed $3.5 billion acquisition of the Brooks and Eckerd pharmacies from Canada's Jean Coutu Group (PJC), Inc., claiming that the proposed acquisition would have adverse effects on the retail sale of pharmacy services to cash customers in local markets. Pharmacy services include the provision of medications by a licensed pharmacist who is able to provide usage advice and other relevant information to consumers. Cash customers do not negotiate prices. In all of the markets identified in the complaint, Rite Aid and Eckerd/Brooks are two of a small number of pharmacies offering cash services. Under the terms of the consent order, the companies are required to sell one store in each of the 23 geographic markets to a Commission-approved buyer. Specifically, the order

requires the companies to sell one store in each relevant geographic area to one of five up-front buyers, including: 1) Kinney Drugs; 2) Medicine Shoppe International, Inc.; 3) Walgreen Co.; 4) Big Y; and 5) Weis Markets. Also, for 10 years from the date the order becomes final, the companies must provide the FTC with written notice before acquiring or leasing any interest in a facility that has operated as a pharmacy within the previous six months and is within five miles of any store divested under the order.

Proposed Acquisition of CBOT Holdings Inc. by Chicago Mercantile Exchange Holdings Inc. (DOJ) - On June 11, 2007, the Department of Justice's Antitrust Division announced the closing of its investigation into the proposed acquisition of CBOT Holdings Inc. by Chicago Mercantile Exchange Holdings Inc. (CME). The Antitrust Division determined that although the two exchanges account for most financial futures (and in particular, interest rate futures) traded on exchanges in the United States, their products are not close substitutes and seldom compete head to head.

First Busey Corporation/Main Street Trust Inc. (DOJ) - On June 12, 2007, the Department of Justice announced that First Busey Corporation and Main Street Trust Inc. have agreed to sell five branch offices with approximately $110 million in deposits in Champaign County, Ill., in order to resolve antitrust concerns about the companies' pending merger. After an investigation, the Department concluded that without the divestitures the merger likely would adversely affect competition in the local markets for commercial banking and retail banking services. Under the agreement, the companies will divest a total of five branches, all in Illinois: two in Champaign, two in Urbana, and one in Mahomet. The divestitures will include the consumer and commercial loans associated with the divested branches. The companies also have agreed that, for a period of two years, they will sell or lease any branches closed in Champaign County to a commercial bank-buyer, unless the parties obtain prior approval from the Department to sell or lease the branch to a nonbank bidder.

Acquisition of Wild Oats Markets Inc. by Whole Foods Market (FTC) - On June 28, 2007, the Federal Trade Commission has issued an administrative complaint challenging Whole Foods Market Inc.'s approximately $670 million acquisition of Wild Oats Markets Inc. According to the complaint, the transaction would violate federal antitrust laws by eliminating the substantial competition between these two uniquely close competitors in the operation of premium natural and organic supermarkets nationwide. This issuance of the administrative complaint follows the filing of a similar complaint in the U.S. District Court for the District of Columbia on June 6, 2007. On June 7, 2007, the judge issued a temporary restraining order under which the parties may not consummate the deal until after a preliminary injunction hearing, which is scheduled for July 31 and August 1, 2007. Subsequently, on August 7, 2007, the Commission, as a matter of discretion, has stayed its proceedings pending the disposition of the collateral federal district court case.

Koninklijke Ahold N.V. (Ahold)/Bruno's Supermarkets, Inc. (FTC) - On July 13, 2007, the Commission has approved a petition from Bruno's Supermarkets to reopen and modify the final

FTC decision and order in the matter of Koninklijke Ahold N.V. (Ahold) and Bruno's Supermarkets, Inc. (Bruno's), Docket No. C-4027. Bruno's requested that the Commission reopen and terminate the order, dated January 16, 2002, as it applies to Bruno's. Bruno's sold some of its supermarkets, including the two stores in relevant geographic areas and has requested that the Commission vacate the order as it relates to Bruno's. The Commission has now approved that request.

May 2007

Allied Waste Industries Inc. /Browning-Ferris Industries Inc. (DOJ) - On May 8, 2007, Allied Waste Industries Inc. has agreed to pay $125,000 as part of a civil settlement with the Department of Justice that resolves Allied's alleged violations of a 2000 consent decree entered in connection with Allied's acquisition of Browning-Ferris Industries Inc. Under the 2000 consent decree, the Department required Allied to sell waste collection and disposal operations in 13 states, covering 18 metropolitan areas, in order to proceed with its $9.4 billion acquisition. Allied was also required to seek the Antitrust Division's approval before acquiring waste collection and disposal assets in any of the relevant geographic areas. According to the Department's petition, Allied violated this provision of the decree by acquiring a set of waste collection assets in the Chicago area in January 2004 from Homewood Disposal Services Inc. without first obtaining Department approval. The settlement agreement resolves all Department concerns arising from the alleged violation.

United States v. Daily Gazette Company and MediaNews Group, Inc. (DOJ) - On May 22, 2007, the Department of Justice filed a civil antitrust lawsuit in U.S. District Court in Charleston, W.Va., alleging that the Daily Gazette Company and MediaNews Group Inc. (MediaNews) violated the antitrust laws when they entered a series of transactions in May 2004 that resulted in the acquisition by Daily Gazette Company of the Daily Mail newspaper with the purpose and intent to shut it down from MediaNews. The Department's lawsuit seeks an order requiring the parties to undo their transactions and restore the competition that existed before May 2004. The department alleged that the local daily newspapers, such as the Charleston Gazette and the Charleston Daily Mail, provide a unique package of attributes for their readers. They provide national, state, and local news in a timely manner in a hardcopy format. The news stories featured in such newspapers are more detailed, when compared to the news reported by radio or television. The Charleston Gazette and the Daily Mail are the only two daily newspapers in Charleston, W.Va. Until 2004, Daily Gazette Company and MediaNews operated within a joint operating agreement (JOA) and each owned a 50 percent interest in an entity called Charleston Newspapers. In May 2004, Daily Gazette Company acquired MediaNews' ownership interest in the JOA and ownership of the Daily Mail. As a result, Daily Gazette Company now owns all of the assets and controls all of the business operations of the only two daily newspapers in Charleston, W.Va. The Newspaper Preservation Act of 1970 expressly permits the joint operation of commercial functions in certain circumstances. When each company had separate ownership interests in their respective papers, they took actions outside the JOA to compete to win subscribers by making their newspaper more attractive to readers. However, the May 2004 transactions gave Daily Gazette Company complete ownership of both papers, along with the unilateral power to shut down the Daily Mail. The Department's complaint alleges that the

transactions contravened the Act's requirements in order to eliminate the Daily Mail and are outside the scope of any immunity under the Act.

United States v. James D. Dondero (DOJ) - On May 21, 2007, the Department's Antitrust Division, at the request of the Federal Trade Commission, filed a civil lawsuit in U.S. District Court in Washington, D.C., against James D. Dondero of Dallas for violating the Hart-Scott-Rodino Act of 1976 (HSR). According to the Commission, in late February 2005, Dondero, already having substantial investments in Motient Corporation's voting securities, exercised an option to acquire additional 10,000 shares of stock. Dondero did not make an HSR filing with the Commission until the corrective filing was made on April 25, 2005. The court order settling the Commission's charges requires Dondero to pay a civil penalty of $250,000 for violating the HSR pre-merger rules.

Monsanto Company and Delta & Pine Land Company (DOJ) - On May 31, 2007, the Department of Justice announced that it will require Monsanto Company and Delta & Pine Land Company (DPL) to divest a significant seed company, multiple cottonseed lines, and other valuable assets in order to proceed with their $1.5 billion merger. The Department will also require Monsanto to change certain license agreements as a condition for proceeding with its acquisition of DPL. The relevant antitrust product and geographic markets are the development, commercialization, and sale of traited cottonseed (cottonseed is seed that has been genetically modified) for the MidSouth and Southeast. Growing conditions for cotton differ across regions due to weather conditions, soil type, and varied demands for weed and insect control; Monsanto and DPL recognize this demand and market cottonseed varieties by region. According to the complaint, the combined company would dominate the traited cottonseed market in the United States, with nearly 95 percent of all cottonseed sales in the high-value cotton-growing regions of the MidSouth. In order to go forward with their proposed transaction, the merged firm must divest Monsanto's Stoneville Pedigreed Seed Company, 20 proprietary DPL cottonseed lines, and other significant assets. Monsanto must also provide the divested Stoneville Company a license as favorable as DPL's current Monsanto license in terms of revenues, future traits, and the ability to combine or "stack" non-Monsanto traits with Monsanto traits.

April 2007

United States v. Cemex, S.A.B. de C.V. and Rinker Group Limited (DOJ) - On April 4, 2007, the Department of Justice announced that it has reached a settlement that, if approved by the court, will require Mexico-based Cemex S.A.B. de C.V., the largest United States supplier of ready mix concrete and cement and the seventh largest United States supplier of aggregate, to divest 39 ready mix concrete, concrete block, and aggregate facilities in Arizona and Florida in the event Cemex succeeds in its hostile takeover of Australia-based Rinker Group, second largest U.S. supplier of ready mix concrete and the fifth largest U.S. supplier of aggregate. On May 2, 2007, the Department of Justice filed an amended complaint in U.S. District Court in Washington, D.C., naming Rinker Group Limited as a defendant. Concrete block is a building material used in the construction of residential and commercial structures. Aggregate is crushed stone and gravel produced at quarries, mines, or gravel pits that is used in, among other things, the production of

ready mix concrete, concrete block, and asphalt. Under the terms of the proposed consent decree, once Cemex obtains control of Rinker, Cemex must divest certain ready mix concrete assets to a single buyer in each of the areas of competitive concern. The terms of the proposed consent decree also require the divestiture of all of Rinker's concrete block-related assets in the Tampa/St. Petersburg and Fort Myers/Naples areas. Cemex must divest two aggregate plants in the Tucson, Ariz., area to the same acquirer that purchases the two ready mix plants to be divested at the same locations.

Proposed Acquisition of Giant Industries, Inc. by Western Refining, Inc. (FTC) - On April 16, 2007, after the Federal Trade Commission filed a complaint for temporary restraining order, the U.S. District Court for the District of New Mexico has issued a temporary restraining order (TRO) blocking Western Refining, Inc.'s proposed $1.4 billion acquisition of rival energy company Giant Industries, Inc., pending the completion of a preliminary injunction hearing. Both companies compete in a light petroleum products market. Motor gasoline, diesel fuels, and jet fuel (collectively "light petroleum products") are examples of fuels used in automobiles and other vehicles. Giant and Western both own and operate refineries, and their adjacent terminals, in northern New Mexico. The District Court was tentatively persuaded that Western is a participant in the Albuquerque market, even though it does not own a terminal in Albuquerque and that by acquiring Giant, Western would increase its share of the bulk supply of light petroleum products to northern New Mexico. Accordingly, the court issued a TRO.

Proposed Acquisition of Abrika Pharmaceuticals, Inc. by Actavis Group hf. (FTC) - On April 16, 2007, the Federal Trade Commission announced its challenge to the terms of Actavis Group hf.'s (Actavis) proposed acquisition of Abrika Pharmaceuticals, Inc. (Abrika), alleging that the transaction would create a monopoly in the U.S. market for generic isradipine capsules. Isradipine capsules are typically prescribed to patients to lower their blood pressure and also are used to treat hypertension, ischemia, and depression. Actavis and Abrika are the only two companies selling generic isradipine capsules in the United States, and the acquisition would eliminate Abrika as a competitor and create a monopoly. Under a consent order that will allow the deal to proceed, the companies will divest all rights and assets needed to make and market generic isradipine capsules to Cobalt Laboratories, Inc. within 10 days of the acquisition.

Amsted Industries Incorporated/FM Industries (DOJ) - On April 18, 2007, the Department of Justice announced that it has reached a settlement that will require Chicago-based Amsted Industries Inc. to divest certain assets in order to remedy harm to competition arising from its December 2005 acquisition of FM Industries (FMI). The Department said the acquisition removed Amsted's only competitor in new end-of-car cushioning units (EOCCs) used in the railroad industry, resulted in higher prices, and substantially lessened competition in the market for used EOCCs. EOCCs are hydraulic devices that protect sensitive cargos by mitigating the forces experienced by railcars during transit and coupling. The consent decree requires Amsted to divest all of the intangible and other manufacturing assets needed to produce new and reconditioned EOCCs that it acquired from FMI. Because the FMI business was discontinued as a result of the transaction and Amsted has only one facility that manufactures EOCCs, the decree requires Amsted to grant a perpetual license to its own intellectual property to account for gaps in the FMI assets. In addition, Amsted will be prohibited from acquiring any assets or

any interest in the development, production, or sale of EOCCs in the U.S. if the value of such acquisition exceeds $1 million without first notifying the U.S. Department of Justice.

March 2007

Proposed Acquisition of The Peoples Natural Gas Company by Equitable Resources, Inc. (FTC) - On March 15, 2007, the Federal Trade Commission has approved a complaint and on April 13, 2007 filed a complaint in federal district court seeking a temporary restraining order and preliminary injunction to stop Equitable Resources, Inc.'s (Equitable) proposed acquisition of The Peoples Natural Gas Company (Dominion Peoples), a subsidiary of Dominion Resources, Inc. Equitable and Dominion Peoples are each other's sole competitors in the distribution of natural gas to nonresidential customers in certain areas of Allegheny County, Pennsylvania, which includes Pittsburgh. The complaint alleges that the proposed transaction would result in a monopoly for many customers that now enjoy competition. While the Pennsylvania Public Utilities Commission (PUC) establishes maximum delivery rates the companies can charge, the companies can provide customers with discounts below the maximum; in fact, offering discounts is how the two companies compete. As the companies cannot consummate the transaction until after the PUC issues its decision, the FTC has not, at this time, filed for a preliminary injunction in federal district court to block the proposed transaction, pending trial. However, the Commission has voted to authorize the staff to seek such an injunction, should it become necessary.

February 2007

Acquisition of Arcelor S.A. by Mittal Steel Company N.V. (DOJ) - On February 20, 2007, the Department of Justice announced that it will require Mittal Steel Company N.V. to divest its Sparrows Point facility located near Baltimore, Md., to remedy the competitive harm arising from Mittal's recent $33 billion acquisition of Arcelor S.A. On August 1, 2006, the Department filed a civil lawsuit in U.S. District Court in Washington, D.C., to block Mittal's proposed acquisition of Arcelor claiming it would decrease competition in tin mill products market and presented a consent decree for court's approval that would require a sale of Dofasco, Arcelor's subsidiary. In the event the sale of Dofasco could not be carried out as required, the proposed consent decree gave the Department the right to select for divestiture either Mittal Steel's Sparrows Point mill or its Weirton mill, located in Weirton, W.Va. Mill Products are finely rolled steel sheets, usually coated with a thin protective layer of tin or chrome. Tin mill products are manufactured using a sequence of processing steps in which steel is rolled into successively thinner sheets, then hardened, and finally coated with either tin or chrome. Packaging alternatives, such as plastic containers, are generally not viewed by can customers as replacements for products normally packaged in cans because of cost differences and the performance advantages associated with cans. The Department has determined the divestiture of Sparrows Point will most reliably remedy the anticompetitive effects of the acquisition. On August 1, 2007, Mittal signed a contract to sell Sparrows Point to a joint venture led by Esmark Corporation. That sale, however, remains subject to several conditions, including the Department's approval of the contract and proposed purchaser.

January 2007

Proposed Acquisition of Mayne Pharma Ltd. by Hospira, Inc. (FTC) - On January 18, 2007, the Federal Trade Commission announced its challenge to Hospira Inc.'s (Hospira) proposed $2 billion acquisition of rival drug manufacturer Mayne Pharma Ltd. (Mayne), along with an agreement and order requiring the companies to sell assets used to manufacture and supply five generic injectable pharmaceuticals in order for the transaction to proceed. Injectable hydromorphone is a narcotic opioid analgesic used to relieve moderate-to-severe pain, both acute and chronic. Only three companies compete in the U.S. market for the generic version of the drug: Hospira, Baxter Healthcare Corp. (Baxter), and Mayne. Nalbuphine is an injectable opioid analgesic also used to relieve moderate-to-severe pain. Hospira currently is the only supplier; however, Mayne is in the process of entering the market. The proposed transaction likely would eliminate Mayne as a potential competitor. Injectable morphine is a widely used opioid analgesic used to relieve moderate-to-severe pain. Hospira is a leading producer, while Baxter and Amphastar Pharmaceuticals, Inc. are the only other suppliers of generic injectable morphine in the United States. Mayne is in the process of entering this market, and one of the limited number of firms that could enter in the near future. Injectable preservative-free morphine, unlike injectable morphine, is typically used when the drug is delivered into the spinal column. Currently, only Hospira and Baxter sell this product; Mayne is in the process of entering the market. Injectable deferoxamine is an iron chelator used to treat acute iron poisoning or chronic iron overload. Hospira and Teva Pharmaceuticals Ltd. are the only suppliers of this generic injectable product in the United States. Mayne is in the process of entering this market. Under the terms of the consent order, Hospira and Mayne are required to divest the assets referenced above to Barr Laboratories. Further, Hospira and Mayne are to provide transitional services to enable Barr or another acquirer to obtain all of the FDA approvals necessary to produce and market the assets purchased. Such services include transfer technology assistance to manufacture the products in the same manner, and of the same quality, as by Hospira and Mayne, the order requires Hospira and Mayne to file regular reports with the Commission until the divestitures and transfers are completed.

Proposed Acquisition of McData Corporation by Brocade Communications Systems Inc. (FTC) - On January 23, 2007, the Federal Trade Commission announced that it closed a nonpublic investigation determining that the proposed acquisition of McData Corporation by Brocade Communications Systems Inc. will not violate Section 7 of the Clayton Act or Section 5 of the Federal Trade Commission Act. Accordingly, the investigation has been closed.

Kinder Morgan, Inc. /The Carlyle Group and Riverstone Holdings LLC (FTC) - On January 25, 2007, the Federal Trade Commission announced a complaint challenging the terms of a proposed $22 billion deal whereby energy transportation, storage, and distribution firm Kinder Morgan, Inc. (KMI) would be taken private by KMI management and a group of investment firms, including private equity funds managed and controlled by The Carlyle Group (Carlyle) and Riverstone Holdings LLC (Riverstone). A relevant line of commerce is the terminaling of gasoline and other light petroleum products. Magellan and KMI both own competing terminals in the metropolitan areas in the southeastern United States. Terminals are specialized facilities with large storage tanks used for the receipt and local distribution of large quantities of gasoline and other light petroleum products. The complaint alleged that the proposed transaction would make it easier for the acquirers to exercise unilateral market power because many of KMI's and

Magellan's terminals are customers' first or second choices and would increase the likelihood of coordinated interaction between competitors in the eleven markets. According to the consent order, Carlyle's and Riverstone's interest in Magellan should be turned into a passive investment, by requiring them to: (1) remove all of their representatives from the Magellan Board of Managers and its boards of directors; (2) cede control of Magellan to its other principal investor, Madison Dearborn Partners; and (3) not influence or attempt to influence the management or operation of Magellan. The order also requires Respondents to establish safeguards against the sharing of competitively sensitive information between KMI and Magellan.

December 2008

Acquisition of Allied Waste Industries, Inc. by Republic Services, Inc. (DOJ) - On December 3, 2008, the DOJ announced that it had reached a settlement with Republic Services, Inc. (Republic) requiring the divestiture of commercial waste collection and disposal assets in 15 metropolitan areas in order to proceed with its proposed $4.5 billion acquisition of Allied Waste Industries, Inc. (Allied). Under the terms of the consent decree, Republic will divest 87 commercial waste collection routes, nine landfills, and 10 transfer stations, along with ancillary assets, and in three areas, access to landfill disposal capacity. The consent agreement also requires Republic to notify the DOJ and the relevant state before acquiring any waste collection or disposal operations in any of the 15 metropolitan areas for the next 10 years. The Attorneys General of California, Kentucky, Michigan, North Carolina, Ohio, Pennsylvania, and Texas joined in the investigation and settlement. The Department said that, without the divestitures, the transaction as originally proposed would have harmed customers in 15 metropolitan areas throughout the United States as a result of a reduction in competition for commercial solid waste collection and disposal.

Acquisition of National City Corporation by PNC Financial Services Group (DOJ) - On December 11, 2008, the DOJ announced it had reached a settlement with PNC Financial Services Group Inc. (PNC), requiring it to sell 61 of National City Corp.’s branch banking offices in western Pennsylvania, in order for PNC to proceed with its acquisition of National City. The total deposits for the 61 branches to be divested equals approximately $4.1 billion as of June 30, 2008. The consent agreement also requires the companies to divest approximately half of National City’s Pittsburgh area lending and related business with middle market customers, and almost all of its lending and related business in the Erie area. The Department said that the divestitures will ensure that consumers, small businesses, and middle market businesses in the affected areas still have choices for banking services and benefit from continued competition. The proposed merger was subject to the final approval of the Board of Governors of the Federal Reserve System.

Acquisition of Barr Pharmaceuticals by Teva Pharmaceuticals (FTC) - On December 19, 2008, the FTC announced that it had reached a settlement with Teva Pharmaceuticals Industries Ltd. (Teva), in connection with Teva’s proposed $8.9 billion acquisition of Barr Pharmaceuticals, requiring Teva to divest assets in 29 U.S. markets. Under the terms of the consent order, Teva

will divest assets in generic drugs commonly used to treat acid reflux disease, several types of cancer, bacterial infections, diabetes and depression. The rights to manufacture such drugs will be split between Watson Pharmaceuticals and Qualitest Pharmaceuticals. These companies already are competitors in other generic drug markets. The FTC said that the divestitures will ensure that the markets for these drugs remain competitive, and that consumers will not be forced to pay higher prices or to forgo treatment as a result of the acquisition. The FTC also stated that the proposed transaction would eliminate one of up to four competitors in each of the relevant markets. The FTC announced its approval of the final order on February 10, 2009.

Acquisition of Alpharma, Inc. by King Pharmaceuticals (FTC) - On December 29, 2008, the FTC announced that it had reached a settlement with King Pharmaceuticals, Inc. (King) in connection with King’s proposed $1.6 billion acquisition of Alpharma, Inc. The consent order, which was later approved, requires King to divest the rights to Alpharma’s long-acting opioid analgesic drug, Kadian, to Actavis. The divestiture would restore competition between Kadian and King’s long-acting opioid drug, Avinza. The FTC stated that, without the divestiture, the acquisition as proposed would be anticompetitive, as it would have reduced direct and substantial competition between King and Alpharma in the long-acting opioid market. Although Purdue Pharma L.P.’s Oxycontin is the leading drug in this market, King’s and Alpharma’s products are the significant branded competitors.

November 2008

Acquisition of Anheuser-Busch by InBev N.V. (DOJ) - On November 14, 2008, the DOJ announced that it had reached a settlement with InBev N.V./S.A. requiring it to divest subsidiary Labatt USA, along with a license to brew, market, promote and sell Labatt brand beer in the United States, in order for InBev to proceed with its $52 billion proposed acquisition of Anheuser-Busch Companies, Inc. The Department said that the transaction as originally proposed would have eliminated competition between Labatt and Anheuser-Busch in Buffalo, Rochester, and Syracuse, New York, resulting in higher prices for consumers. The buyer must be approved by the DOJ.

October 2008

Acquisition of Huntsman Corp. by Hexion LLC (FTC) - On October 2, 2008, the FTC announced that it had reached a settlement with Hexion LLC requiring divestitures of Hexion’s specialty epoxy business in order for it to proceed with its proposed $10.6 billion acquisition of Huntsman Corp. Under the terms of the consent order, Hexion will divest its specialty epoxy business to Spolek Pro Chemickou A Hunti Vyrobu, and will be subject to a restriction on obtaining non-public information relating to another product, methyl diisocanate (MDI), from MDI competitors. The Commission said that the transaction as originally proposed would have led to reduced competition for specialty epoxy resins in several application-specific markets in North America, where Huntsman and Hexion together account for between 60 and 90 percent of sales. Additionally, Hexion sold formaldehyde to Huntsman to make MDI (but did not produce MDI) before the transaction, but after the acquisition, Hexion will produce MDI and sell formaldehyde

to MDI producers. The Commission said that, as a result, the originally proposed transaction would have increased the likelihood of coordinated interaction among MDI producers. The consent order restriction on obtaining non-public information is intended to reduce the potential for such coordinated interaction.

Acquisition of Enodis plc by Manitowoc Co., Inc. (DOJ) - On October 6, 2008, the DOJ announced that it reached a settlement with The Manitowoc Co. requiring the divestiture of Enodis’s U.S. ice machine business, so that it may proceed with its proposed $2.7 billion acquisition of Enodis plc. The Department said that, because Manitowoc and Enodis are two of only three significant producers of ice machines in the U.S., the originally proposed transaction would have substantially lessened competition in the development, production, distribution and sale of commercial ice cube machines in the U.S., resulting in increased prices and reduced quality and innovation. The DOJ and the European Commission cooperated in their investigation of the acquisition, and the settlement is consistent with the European Commission’s proposed remedy.

Acquisition of Alltel Corp. by Verizon Communications Corp. (DOJ) - On October 30, 2008, the DOJ announced that it had reached a settlement with Verizon Communications Corp. to divest assets in 100 areas in 22 states in order to proceed with its proposed $28 billion acquisition of Alltel Corp. Under the terms of the consent decree, Verizon will divest assets in the entire states of North Dakota and South Dakota; large parts of the states of Colorado, Georgia, Kansas, Montana, South Carolina, Utah and Wyoming; and areas in Alabama, Arizona, California, Idaho, Illinois, Iowa, Minnesota, Nebraska, Nevada, New Mexico, North Carolina, Ohio and Virginia. The Department said that the transaction as originally proposed would have substantially lessened competition in these 100 areas, which likely would have resulted in higher prices, lower quality, and reduced network investments. The Department also filed modifications to two existing consent decrees so that Verizon could move forward with the divestitures. Alabama, California, Iowa, Kansas, Minnesota, North Dakota, and South Dakota joined in the investigation and consent decree.

September 2008

Acquisition of ChoicePoint, Inc. by Reed Elsevier, Inc. (FTC) - On September 16, 2008, the FTC announced that it had reached a settlement with Reed Elsevier Inc., requiring it to divest assets related to ChoicePoint’s AutoTrackXP and Consolidated Lead Evaluation and Reporting (CLEAR) electronic public records services in order for it to proceed with its proposed $4.1 billion acquisition of Choicepoint, Inc. The Commission said that the transaction as originally proposed would have eliminated the “intense head-to-head competition” between Reed Elsevier and ChoicePoint in the market for the provision of public records services. Reed Elsevier and ChoicePoint account for over 80% of the U.S. market for the sale of electronic public records services to law enforcement customers. Under the terms of the consent order, Reed Elsevier will sell the divestiture assets to Thomson Reuters Legal Inc. (West), and provide transitional services to West for up to two years.

August 2008

Acquisition of Taro Pharmaceutical Industries by Sun Pharmaceutical (FTC) - On August 13, 2008, the FTC announced that it had reached a settlement with Sun Pharmaceutical Industries Ltd. (Sun), requiring divestiture of Sun’s generic formulations of the anticonvulsant drug carbamazepine in order for Sun to proceed with its acquisition of Taro Pharmaceutical Industries Ltd. (Taro). Sun is based in India, and Taro is based on Israel, but both companies sell generic drugs in the United States. Under the terms of the consent order, Sun is required to divest all of its rights and assets needed to develop three generic formulations of carbamazepine to Torrent Pharaceutical Ltd. (Torrent), a generic drug manufacturer based in India. The Commission said that the transaction as originally proposed would have been anticompetitive because it would have reduced the number of competing generic carbamazepine suppliers in the markets for each of the three formulations. In the market for chewable carbamazepine tablets, only two firms would have remained. For immediate release tablets, only three firms would have remained, and in the market for a generic extended-release formulation, competition would have been completely eliminated, as Sun and Taro are the only two producers known to be in the process of developing such a drug. If the FTC determines that Torrent is an unacceptable purchaser, then Sun must divest to another Commission-approved buyer.

Acquisition of WWBT-TV by Raycom Media (DOJ) - On August 28, 2008, the DOJ announced that it had reached a settlement with Raycom Media, Inc. (Raycom) requiring it to divest the local CBS affiliate, WTVR-TV, in Richmond, Virginia in order for Raycom to acquire Richmond NBC affiliate, WWBT-TV, from Lincoln Financial Media Company. The Department said that without the divestiture, Raycom would own two of the four local broadcast stations in Richmond, which likely would have led to higher prices for advertising on local broadcast television. Before the transaction, the stations competed head-to-head for spot broadcast advertising time in Richmond. The DOJ must approve the purchaser of the divestiture assets.

July 2008

Acquisition of Hawker Beechcraft’s Flight Support Services Business by Signature Flight Support Corporation (DOJ) - On July 3, 2008, the DOJ announced that it had reached a settlement with Signature Flight Support Corp. (Signature) requiring the divestiture of assets used to provide flight support services at Indianapolis International Airport in order for Signature to proceed with its acquisition of Hawker Beechcraft’s flight support services business. The Department said that the transaction, as originally proposed, would have substantially lessened competition for flight support services at the Indianapolis International Airport, as it would have combined the only two flight support services providers. The settlement requires the divestiture of either Signature’s or Hawker Beechcraft’s flight support services assets at the Indianapolis International Airport to a DOJ-approved buyer.

Acquisition of OMAX Corp. by Flow International Corp. (FTC) - On July 10, 2008, the FTC announced that it had reached a settlement with Flow International Corp. (Flow), which would allow Flow to proceed with its proposed $109 million acquisition of OMAX Corp. (OMAX). According to the Commission, Flow and OMAX were each other’s closest competitor in the U.S. market for waterjet cutting systems. Under the terms of the consent order, Flow is required to grant to each competitor seeking one a royalty-free license to two OMAX patents relating to the controllers that are used in waterjet cutting systems.

Acquisition of V & S Vin & Spirit by Pernod Ricard (FTC) - On July 17, 2008, the FTC announced it had reached a settlement with Pernod Ricard (Pernod) that will enable it to move forward with its proposed $9 billion acquisition of V & S Vin & Spirit (V&S). Pernod distributes Stolichnaya, and V&S sells Absolut; Stolichnaya and Absolut are the two most popular brands of “super premium” vodka sold nationwide. The terms of the consent order require Pernod to end its distribution agreement with the owner of Stolichnaya, Spirits International BV, within six months of acquiring V&S.

The Commission said the transaction also raised competitive issues in four other distilled spirits markets because in purchasing V&S, Pernod will assume V&S’s role in a distribution joint venture between itself and Fortune Brands, LLC (Fortune). Fortune owns Beam Global Spirits & Wines, Inc. (Beam Global), which competes with Pernod in the sale of cognac, domestic cordials, coffee liqueur, and popular gin. The Commission raised concerns that Pernod’s participation in the joint venture would give it access to competitively sensitive information about Beam Global. To address this concern, the consent order imposes firewalls between Pernod and Beam Global to prevent Pernod from acquiring and using competitively sensitive information about the Beam Global brands.

The Commission said that the transaction as originally proposed would have eliminated substantial competition in the United States between “super-premium” vodka brands, which would have allowed the combined firm to impose an anticompetitive price increase. The Commission also said that, if Pernod were able to acquire and use competitively sensitive information about Beam Global, all the competitors in the markets for cognac, domestic cordials, coffee liqueur, and popular gin potentially could raise prices, possibly through coordinated interaction.

Acquisition of Unilever’s Lawry’s and Adolph’s Brands by McCormick (FTC) - On July 30, 2008, the FTC announced that it reached a settlement with McCormick, requiring it to divest its Season-All seasoned salt business in order to proceed with its proposed $605 million acquisition of Unilever N.V.’s Lawry’s and Adolph’s brands of seasoned salt products. Under the terms of the consent order, McCormick will divest its Season-All business to Morton International, Inc. or another FTC-approved buyer. The Commission said that the transaction as originally proposed would have increased significantly market concentration in the market for branded seasoned salts because McCormick would have almost 80% of the market, which might have enabled McCormick to raise prices unilaterally.

June 2008

Acquisition of Rural Cellular Corp. by Verizon Communications Corp. (DOJ) - On June 10, 2008, the DOJ announced that it had reached a settlement requiring Verizon Communications Corp. to divest wireless communications assets in six geographic areas in Vermont, New York and Washington in order for Verizon to proceed with its $2.7 billion acquisition of Rural Cellular Corp. The Department said that the transaction as originally proposed would have substantially lessened competition in these six geographic areas, possibly resulting in higher prices and lower quality for wireless consumers, and reduced network investments. The state of Vermont joined the DOJ in the complaint and consent decree.

Acquisition of INEOS Group Ltd.’s Sodium Silicate Businesses by Carlyle Partners IV, L.P. (FTC) - On June 30, 2008, the FTC announced that it had reached a settlement with Carlyle Partners IV, L.P. (Carlyle) requiring Carlyle to divest a sodium silicate plant and related business in order to proceed with its acquisition of INEOS Group Ltd. (INEOS). Carlyle is the owner of PQ Corporation (PQ), the largest sodium silicate producer in the Midwest United States, and INEOS is the third largest sodium silicate producer. The Commission said that the acquisition as originally proposed would have been anticompetitive because it would have combined PQ with INEOS, potentially leading to coordination among competitors in the sodium silicate market. The consent decree requires the firms to sell PQ’s sodium silicate plant and businesses in Utica, Illinois to Oak Hill Acquisition Company or to another FTC-approved buyer, along with all the intellectual property related to sodium silicate product produced at the Utica plant.

May 2008

Acquisition of UAP Holding Corp. by Agrium, Inc. (FTC) - On May 5, 2008, the FTC announced that it reached a settlement with Agrium, Inc. requiring the divestiture of five UAP Holding Corp. (UAP) farm stores in Michigan and two Agrium farm stores in Maryland and Virginia in order for Agrium to proceed with its $2.65 billion acquisition of UAP. The two Agrium stores are required to be sold as a unit because the Virginia store supplies the Maryland store with custom-blended fertilizer. Under the terms of the consent order, Agrium must provide the necessary transition services to the purchasers of the stores for up to a year, and the stores’ employees may be hired by the acquirers. The FTC stated that the transaction, as originally proposed, would have substantially lessened competition in the market for the sale of bulk fertilizer and related services by farm stores in six geographic areas, and potential entry would not offset the anticompetitive effects of the proposed transaction.

April 2008

Merger of Regal Cinemas and Consolidated Theatres (DOJ) - On April 29, 2008, the Department of Justice announced that it reached a settlement requiring Regal Cinemas Inc. (Regal) and Consolidated Theatres Holding GP (Consolidated) to divest movie theater assets in

three North Carolina metropolitan areas in order to proceed with their proposed $210 million merger. The Department said that the transaction, as originally proposed, would substantially lessen competition among first-run commercial movie theaters in areas of Charlotte, Raleigh, and Asheville, N.C., resulting in higher ticket prices and decreased quality viewing experience for moviegoers. The divestitures are required to assure continued competition in markets where the transaction would otherwise result in a significant loss of competition. According to the complaint, movie theaters owned by Regal and Consolidated compete, or soon will compete, head-to-head in each of the three North Carolina areas in which divestitures are required. Under the terms of the proposed settlement, Regal and Consolidated must divest the following movie theaters: the Crown Point 12 in Charlotte; the Raleigh Grand 16 in Raleigh; the Town Square 10 in Garner (a suburb of Raleigh); and the Hollywood 14 in Asheville.

Acquisitions by TALX Corp. of Several Competitors from 2003 through 2005 (FTC) - On April 28, 2008, the FTC announced that it had reached a settlement with TALX Corp. relating to a series of acquisitions TALX undertook from 2003 through 2005 in the markets for unemployment compensation management (UCM) and verification of income and employment (VOIE) services. The settlement allows long-term TALX customers to terminate their contracts if they wish to use a competitor’s UCM services, and requires TALX to eliminate non-compete clauses in its agreements with current and former TALX employees. TALX also must give the FTC 30 days’ advance notice before it acquires or enters into a management contract with a UCM or VOIE service provider. The Commission said that the settlement will help promote entry into the UCM and VOIE markets by current and future competitors. The Commission stated that TALX acted illegally by acquiring various competitors from 2003 to 2005 because the cumulative effect of the transactions substantially increased concentration in the UCM and VOIE markets. By acquiring “virtually all its competition in a series of transactions,” TALX increased its ability to unilaterally increase prices and decrease the quality of service in the markets.

March 2008

Acquisition of Foseco by Cookson Group (DOJ) - On March 4, 2008, the Department of Justice announced that it reached a settlement requiring Cookson Group plc and Foseco plc to divest Foseco's U.S. carbon bonded ceramic (CBC) business in order to proceed with Cookson's proposed $1 billion acquisition of Foseco. The Department said that the transaction, as originally proposed, would substantially lessen competition in the United States for certain CBCs used in the continuous casting steelmaking process, resulting in increased prices and reduced service and innovation. Cookson and Foseco are two of only three competitors that produce CBCs in North America. CBCs are products made of carbon-bonded alumina graphite that control the flow of molten steel during the continuous casting of steel. According to the complaint, the transaction would have eliminated competition between Cookson and Foseco for two types of CBCs-stopper rods and ladle shrouds-sold to customers in the United States. Under the terms of the settlement, Cookson and Foseco must divest Foseco's entire U.S. CBC business, including its plant in Saybrook, Ohio, and related assets.

Merger of Altivity Packaging and Graphic Packaging International Inc. (DOJ) - On March 5, 2008, the Department of Justice announced that it reached a settlement requiring Altivity Packaging LLC (Altivity) and Graphic Packaging International Inc. (Graphic) to divest two paperboard mills-one in Indiana and the other in Pennsylvania-in order to proceed with their proposed $1.75 billion merger. The Department said that the merger, as originally proposed, would have substantially lessened competition in the production and sale of a type of paperboard used to make folding cartons for consumer and commercial packaging, including cereal boxes. Altivity is the largest producer of coated recycled boxboard (CRB) in North America and Graphic is the fourth largest. Both companies also are major integrated producers of folding cartons made from CRB. The merger, as originally proposed, would have produced a single firm with approximately 42 percent of the production and sale of CRB in North America. The terms of the settlement require divestiture of two mills currently owned and operated by Altivity for the production of CRB-one in Wabash, Ind., and the other in Philadelphia. If for any reason divestiture of the Philadelphia CRB mill is not accomplished, the proposed settlement would require the sale of Altivity's Santa Clara, Calif. mill.

February 2008

Acquisition of Clear Channel by Bain Capital (Bain) and Thomas H. Lee Partners (DOJ) - On February 13, 2008, the Department of Justice announced that it reached a settlement requiring Clear Channel, the largest operator of radio stations in the United States, to divest radio stations in four cities in order for a group of private equity investors led by Bain Capital (Bain) and Thomas H. Lee Partners (THL) to proceed with their acquisition of a controlling interest in Clear Channel. The Department said that the transaction, as originally proposed, likely would have resulted in higher prices to purchasers of radio advertising in Cincinnati, Houston, Las Vegas and San Francisco because Bain and THL already have substantial ownership interests in two firms that compete with Clear Channel in those cities. Bain and THL have ownership interests in Cumulus Media Partners LLC (Cumulus), a large nationwide operator of radio stations, and THL also has an ownership interest in Univision Communications Inc. (Univision), a large nationwide operator of radio stations that broadcast primarily in Spanish. Under the terms of the settlement, Clear Channel must divest stations in Cincinnati, Houston, Las Vegas and San Francisco to buyers approved by the Department's Antitrust Division.

Acquisition of Reuters Group PLC by Thomson Corporation (DOJ) - On February 19, 2008, the Department of Justice announced that it reached a settlement requiring The Thomson Corporation (Thomson) to sell financial data and related assets in three markets for financial data in order to proceed with Thomson's proposed $17 billion acquisition of Reuters Group PLC (Reuters). The Department said that the transaction, as originally proposed, likely would have resulted in higher prices to purchasers of three important types of financial data used by investment managers, investment bankers, traders, corporate managers, and other institutional customers in making investment decisions and providing advice to their firms and clients. Under the terms of the settlement, Thomson and Reuters must sell copies of the data contained in the following products: Thomson's WorldScope, a global fundamentals product; Reuters Estimates, an earnings estimates product; and Reuters Aftermarket (Embargoed) Research Database, an analyst research distribution product. The proposed settlement further requires the licensing of related intellectual property, access to personnel, and transitional support to

ensure that the buyer of each set of data can continue to update its database so as to continue to offer users a viable and competitive product. With these assets, the acquirer of each set of data will be able to offer institutional financial data users products comparable to those offered by Thomson or Reuters prior to the merger.

Acquisition of Sierra Health Services by UnitedHealth Group (DOJ) - On February 25, 2008, the Department of Justice announced that it reached a settlement requiring UnitedHealth Group Inc. (United) and Sierra Health Services Inc. (Sierra) to divest assets relating to United's Medicare Advantage business in the Las Vegas area in order to proceed with United's acquisition of Sierra. The Department said that the transaction, as originally proposed, would have created a combined company controlling 94 percent of the Medicare Advantage health insurance market in the Las Vegas area and resulted in higher prices, fewer choices, and a reduction in the quality of Medicare Advantage plans purchased by senior citizens in the Las Vegas area. Under the terms of the settlement, current enrollees of United's Medicare Advantage plans will continue to have substantially the same access to providers, including doctors, hospitals, and other medical services, after the divestiture as before. The Justice Department worked closely with the Nevada Attorney General's office in its investigation of the United-Sierra merger, which also entered into a settlement with the parties.

January 2008

Acquisition of Harcourt Assessment by Pearson (DOJ) - On January 24, 2008, the Department of Justice said today that it will require Pearson Plc to divest assets relating to three clinical testing markets in order to proceed with Pearson's proposed $950 million acquisition of Harcourt Assessment. The Department said that the transaction, as originally proposed, would have resulted in higher prices to purchasers of clinical tests, including many school districts, and would likely have impaired the launch of a competitive new test for adult abnormal personality disorders. Clinical tests are used by psychologists, speech-language pathologists, and clinicians, among others, to test for and diagnose individuals with disorders or disabilities, as well as to identify individuals at risk for such disorders or disabilities. Publishers, including Pearson and Harcourt, develop, edit, standardize, norm-reference, market, and sell clinical tests for a wide range of disorders and disabilities. Under the terms of the settlement, Pearson and Harcourt must divest: Harcourt's adaptive behavior clinical test, the Adaptive Behavior Assessment System; Harcourt's adult abnormal personality clinical test, the Emotional Assessment System, which is under development; and in the speech and language clinical test market, either Pearson's Comprehensive Assessment of Spoken Language and the Oral and Written Language Scales or Harcourt's Clinical Evaluation of Language Fundamentals.

December 2009

Acquisition of CF Industries Holdings, Inc. by Agrium Inc. (FTC) - On December 23, 2009, the FTC announced it reached a settlement with Agrium Inc. to divest anhydrous ammonia fertilizer assets in order to move forward with its acquisition of CF Industries Holdings, Inc. Anhydrous ammonia fertilizer is a type of nitrogen fertilizer that is widely used in the farming of corn, beans

and other crops. According to the complaint, the proposed transaction would have eliminated a competitor in the distribution and sale of anhydrous ammonia in the Pacific Northwest; East Dubuque, Illinois; and Marseilles, Illinois. Specifically, Agrium must divest CF's Ritzville anhydrous ammonia terminal in the Pacific Northwest and its terminal in Marseilles, Illinois, and rescind its rights to market anhydrous ammonia produced by Rentech at Rentech's East Dubuque manufacturing plant. The two terminals must be divested to Terra Industries, Inc. or another FTC-approved buyer, and Agrium must provide necessary transition services to Terra.

November 2009

Acquisition of Palm Mortuary, Inc. by Service Corporation International (FTC) - On November 25, 2009, the FTC announced it reached a settlement with Service Corporation International (SCI), the largest cemetery operator in the U.S. and third largest provider of cemetery services in Las Vegas, to make a divestiture in order to complete its acquisition of Palm Mortuary, Inc. (Palm). The FTC's consent order requires SCI to divest Davis Memorial Park, SCI's only cemetery in the Las Vegas area. SCI must also divest the funeral home on the same property, along with the rights to the Davis trade name and the pre-need service contracts associated with the Davis facility and one other funeral home it owns in the Las Vegas area. The complaint alleged the proposed transaction would have increased the likelihood that the combined firm could raise prices either unilaterally or through coordinated interaction with the only remaining competitor in the Las Vegas area. The complaint also alleged that entry of a new competitor is unlikely to counteract the alleged anticompetitive effects of the transaction, in part because there is a limited amount of available land suitable for cemeteries in the Las Vegas area.

Acquisition of NATCO Group, Inc. by Cameron International Corp. (DOJ) - On November 17, 2009, the DOJ announced that it reached a settlement with Cameron International Corp. (Cameron) requiring it to divest certain assets used in the production and sale of desalters for use in the oil refining industry in order to proceed with its $980 million acquisition of NATCO Group Inc. The DOJ stated that the settlement is intended to remedy the loss to competition created by Cameron’s 2005 acquisition of Howe Baker. Refinery desalters are used to remove sale from crude oil at the oil refining stage of production. The DOJ’s complaint alleged that Cameron and NATCO are each other’s closest competitor for a significant set of refinery customers in the U.S. Under the proposed settlement, Cameron will divest the desalter and dehydrator assets purchased from Howe Baker in 2005, and all related tangible and intangible assets, along with a non-exclusive license to certain NATCO technology related to refinery desalters.

Acquisition of Sanyo Electric Co., Ltd. by Panasonic Corporation (FTC) - On November 24, 2009, the FTC announced it reached a settlement with Panasonic Corporation to divest Sanyo Electric Co., Ltd.’s (Sanyo) portable nickel metal hydride (NiMH) battery business so that Panasonic may proceed with its $9 billion acquisition of Sanyo. The consent order provides that Sanyo’s portable NiMH battery business, including a manufacturing plant in Japan, will be sold to FDK Corporation, a subsidiary of Fujitsu Ltd. Portable NiMH batteries power portable electronic devices, such as two-way radios used by police and fire departments. The Commission’s complaint alleged that the transaction as originally proposed would have combined the world’s two largest manufacturers and sellers of portable NiMH batteries. The

Commission also alleged that even though NiMH batteries are one of three types of rechargeable batteries, portable NiMH batteries comprise their own market because current consumers cannot substitute between them without buying new devices.

Acquisition of MedServe, Inc. by Stericycle, Inc. (DOJ) - On November 30, 2009, the DOJ announced that it reached a settlement with Stericycle, Inc., requiring it to divest certain assets used for infectious waste collection in Kansas, Nebraska, Oklahoma and Missouri in order to proceed with its acquisition of MedServe, Inc. According to the DOJ, Stericycle and MedServe are the only companies capable of competing for customers that generate large quantities of infectious waste, such as hospitals and other critical healthcare facilities, in those states. The states of Missouri and Nebraska joined the Division's complaint and settlement.

October 2009

Acquisition of Center for Advanced Imaging and Center for Surgical Excellence by Carilion Clinic (FTC) - On October 7, 2009, the FTC announced it reached a settlement with Carilion Clinic to divest two independent outpatient medical clinics it acquired in 2008. The settlement follows the FTC’s July 2009 administrative complaint challenging Carilion Clinic’s 2008 acquisition of the two medical clinics in Roanoke, Virginia. Under the terms of the proposed consent order, Carilion Clinic must sell both the Center for Advanced Imaging and the Center for Surgical Excellence, along with all the assets necessary to permit the buyer(s) to operate the centers independently and compete effectively in the market place. The divestitures must take place within three months to a buyer or buyers approved by the Commission.

Acquisition of Centennial Communications Corp. by AT&T Inc. - On October 13, 2009, the DOJ announced it reached a settlement with AT&T requiring it to divest assets in eight areas in Louisiana and Mississippi in order to proceed with its $944 million acquisition of Centennial Communications Corp. (Centennial). The divestitures cover portions of southwestern and central Louisiana and southwestern Mississippi. The DOJ alleged that the transaction as originally proposed would substantially lessen competition in mobile wireless telecommunications services in those areas, likely resulting in higher prices, lower quality, and reduced network investments. According to the complaint, AT&T and Centennial are each other’s closest competitor for a set of customers in the eight Cellular Marketing Areas, as defined by the Federal Communications Commission. Divestitures are required in each of these eight areas.

Acquisition of Wyeth by Pfizer Inc. (FTC) - On October 14, 2009, the FTC announced it reached a settlement with Pfizer Inc. requiring divestitures in order to proceed with its $68 billion proposed acquisition of Wyeth. Under the terms of the consent order, Pfizer must divest assets in the market for the manufacture and sale of animal vaccines and animal pharmaceutical products. Specifically, Pfizer has agreed to sell approximately half of Wyeth’s Fort Dodge U.S. animal health business to Boehringer Ingelheim Vetmedica, Inc. The Fort Dodge assets to be divested include vaccines for cattle, dogs, cats, and other pharmaceutical products used in treating cattle, dogs, cats and horses. Pfizer will also sell its horse vaccines to Boehringer Ingelheim Vetmedica, Inc. Pfizer will also be required to provide certain services to the buyer

on an interim basis, and to provide the necessary regulatory approvals, brand names, marketing materials, customer contracts, and other assets required to market the products in the U.S. Pfizer will also return its exclusive distribution rights for a product to treat tapeworms in horses to Virbac S.A., the manufacturer of the product.

Acquisition of Merck & Co., Inc. by Schering-Plough (FTC) - On October 29, 2009, the FTC announced it reached a settlement with Schering-Plough to make divestitures in order to proceed with its $41.1 billion acquisition of Merck & Co., Inc. Specifically, Merck must sell its interest in Merial Limited, an animal health joint venture with Sanofi-Aventis S.A., and Schering-Plough must sell its assets related to its NK1 receptor antagonist drug, rolapitant, for nausea and vomiting in humans. According to the Commission’s complaint, the proposed acquisition would have reduced competition in a range of animal health markets, as the companies are two of the leading animal health suppliers in the U.S. The complaint also alleged that because Merck’s Emend was the first and only NK1 receptor antagonist drug approved, and Schering-Plough was in the process of licensing its own NK1 receptor antagonist drug, rolapitant, to a third party, the acquisition (as originally proposed) would have reduced the combined firm’s incentive to launch rolapitant, delaying or eliminating a future entrant into the market for NK1 receptor antagonist drugs.

September 2009

Acquisition of Morton International, Inc. by K+S Aktiengesellschaft (FTC) - On September 29, 2009, the FTC announced it reached a settlement with K+ S Aktiengesellschaft (K+S) in its $1.68 billion proposed acquisition of Morton International, Inc. (Morton). The consent order requires K+S to divest certain assets of its U.S. subsidiary, International Salt Company LLC (ISCO). ISCO’s bulk de-icing salt assets in Maine must be divested to Eastern Salt Company, Inc. and similar assets in Connecticut must be divested to Granite State Minerals, Inc. According to the Commission’s complaint, Morton and ISCO are the two primary bidders for the sale and delivery of bulk de-icing salt in Maine and Connecticut. Without the divestitures, the combined company would have had a market share of more than 70 percent in each state.

August 2009

Acquisition of Semicoa Inc. by Microsemi Corporation (DOJ) - On August 20, 2009, the DOJ announced it reached a settlement with Microsemi Corporation requiring it to divest all of the assets it acquired from Semicoa Inc. on July 14, 2008. Without the divestiture, the DOJ alleged that there would be little or no competition in the development, manufacture or sale of certain semiconductor devices used in critical U.S. military and space programs essential to national security. The semiconductor devices at issue are small signal transistors and ultrafast recovery rectifier diodes used to control the flow of electric current. They are used in critical military and civil applications ranging from satellites to nuclear missile systems. Before the acquisition, Microsemi and Semicoa were the only manufacturers of small signal transistors qualified for these applications. They were also both in a position to become qualified for their ultrafast recovery rectifier diodes, which are in short supply. The DOJ alleged that without the divestiture, increased prices and slower delivery of these components would result.

July 2009

Acquisition of Indalex Holdings Finance Inc. by Sapa Holding AB (DOJ) - On July 30, 2009, the DOJ entered into a settlement with Sapa Holding AB (Sapa) in its proposed $150 million acquisition of Indalex Holdings Finance Inc. (Indalex). In order to proceed with the deal, Sapa must divest either Sapa’s Catawba, N.C. aluminum sheathing (coiled extruded aluminum tubing) manufacturing plant, or Indalex’s aluminum sheathing facility at its Burlington, N.C. plant. If the parties are unable to sell either facility promptly to a viable purchaser acceptable to the DOJ, then they must sell Indalex’s entire Burlington, N.C. extruded aluminum plant, which produces fabricated aluminum products. Aluminum sheathing is used to make coaxial cables purchased by cable television companies for use in transmitting high frequency broadband signals to their subscribers. According to the complaint, Sapa and Indalex are the only two manufacturers of aluminum sheathing in the U.S

April 2009

Acquisition of Ciba Holding Inc. by BASF (FTC) - On April 2, 2009, the FTC entered into a settlement with BASF in its proposed $5.1 billion acquisition of Ciba Holding Inc. (Ciba). Under the terms of the settlement, BASF must sell all tangible assets and intellectual property related to two high-performance pigments, bismuth vanadate and indanthrone blue, to an FTC-approved buyer within six months. The FTC alleged that the worldwide markets for the two high-performance pigments, which are used to provide color to various products, are highly concentrated. If the transaction were to go forward as proposed, the combined company would control 60% of bismuth vanadate sales, and more than 50% of the indanthrone blue market. The Commission stated that the transaction would have therefore allowed the combined firm to exercise unilateral market power, and would have increased the likelihood of coordinated interaction with the remaining firms in these markets.

February 2009

Consummated Acquisition of The Lockhart Company by Lubrizol Corp. (FTC) - On February 26, 2009, the FTC announced it reached a settlement with Lubrizol Corp. in its consummated 2007 acquisition of the oxidate assets of The Lockhart Company (Lockhart). Under the terms of the settlement, Lubrizol agreed to transfer the oxidate assets it purchased from Lockhart to Additives International LLC (AI), and to eliminate the non-compete provision it had with Lockhart, which was a part of the original purchase agreement. The Commission stated that the market for oxidates, which are used to prevent rust and corrosion during the manufacture of metal products in the U.S., is highly concentrated, and Lubrizol’s acquisition of the Lockhart assets removed the last substantial competitor in the market. Under the terms of the consent agreement, Lubrizol must also give AI the rights to use Lockhart trademarks for two years, and Lockhart must lease a portion of its Flint plant to AI.

January 2009

Acquisition of Datascope Corp. by Getinge AB (FTC) - On January 29, 2009, the FTC announced that it had reached a settlement with Getinge AB in connection with Getinge AB’s proposed $865 million acquisition of its rival, Datascope Corp. Under the terms of the settlement, Datascope must divest its endoscopic vessel harvesting (EVH) product line to an FTC-approved buyer. Datascope has proposed to sell the assets to Sorin Group USA, Inc. The FTC stated that the acquisition, as originally proposed, would give Getinge AB a near-monopoly share of the market for EVH products, which are used in coronary bypass surgery. According to the FTC’s complaint, without the divestiture, Getinge AB would have a share of approximately 90% of the U.S. EVH market.

December 2010

Acquisition of Portec Rail Products In. by L.B. Foster Co. (DOJ) - On December 14, 2010, the DOJ announced it reached a settlement that will require L.B. Foster Company to divest a West Virginia plant used in the development, manufacture and sale of certain railroad joints to Koppers Inc., in order for Foster to proceed with its acquisition of Portec Rail Products Inc. The DOJ alleged the acquisition as originally proposed would combine the two primary U.S. manufacturers of bonded insulated rail joints and two of only three U.S. manufacturers of polyurethane-coated insulated rail joints. The DOJ alleged that the transaction as originally proposed would have lead to higher prices, lower quality, less customer service and less innovation.

November 2010

Acquisition of Seadrift LP by GrafTech International. (DOJ) - On November 29, 2010, the DOJ announced it reached a settlement with GrafTech International Ltd., requiring it to make significant modifications to its supply agreement with ConocoPhillips Company, and to accept certain reporting obligations, in order to proceed with its proposed acquisition of Seadrift Coke LP. The DOJ alleged, in its current form, the GrafTech-Conoco supply agreement could encourage the exchange of pricing and output information of a critical petroleum product used in the production of graphite electrodes. The DOJ asserted that requiring GrafTech to remove certain provisions from the supply agreement and provide reports on demand and capacity utilization and implementing firewalls would remove the ability and incentive for GrafTech and Conoco to coordinate on price and output post-acquisition.

Acquisition of Prime Outlets Acquisition Company LLC by Simon Property Group Inc. (FTC) - On November 10, 2010, the FTC announced it reached a settlement with Simon Property Group Inc., requiring it to sell either its Cincinnati Premium Outlet center located in Monroe, Ohio, or its Prime Outlets-Jeffersonville outlet center in Jeffersonville, Ohio, in order for Simon to proceed with its acquisition of Prime Outlets Acquisition Company LLC. In addition, Simon agreed to remove radius restrictions for tenants with stores in its outlet malls serving the Chicago and Orlando market. Simon, a real estate investment company acquired all of Prime’s 22 outlet

centers in December 2009 for approximately $2.3 billion. The FTC alleged that without this divesture the transaction raised competitive concerns in several local markets.

Acquisition of Psychiatric Solutions Inc. by Universal Health Services, Inc. (FTC) - On November 15, 2010, the FTC announced it reached a settlement with Universal Health Inc., requiring it to sell 15 psychiatric facilities, including two inpatient hospitals in Las Vegas, one inpatient hospital in Delaware; and one inpatient hospital and eleven affiliated outpatient clinics in Puerto Rico, in order for Universal to proceed with its $3.1 billion acquisition of Psychiatric Solutions Inc. The FTC alleged that without this divesture, there would have been reduced competition in the provision of acute inpatient psychiatric services in three local markets: Delaware, Puerto Rico and metropolitan Las Vegas, Nevada. The clinics and other facilities must be sold to FTC-approved buyers.

September 2010

Acquisition of Airgas Inc. by Air Products and Chemicals Inc. (FTC) - On August 9, 2010, the FTC reached a settlement agreement with Air Products and Chemicals Inc., requiring it to sell 15 air separation units and related assets that were previously owned and operated by Airgas, in order for Air Products to proceed with its approximately $7 billion acquisition of Airgas Inc. The FTC alleged that without this divesture the acquisition would harm competition in five regional markets for bulk liquid oxygen and bulk liquid nitrogen, which are used in a range of applications from hospital patient care to the manufacture of frozen foods.

Acquisition of Coca-Cola Enterprises by Coca-Cola Company. (FTC) - On September 27, 2010, the FTC reached a settlement agreement with The Coca-Cola Company and its largest North American bottler, Coca-Cola Enterprises Inc. requiring it to set up a “firewall” to ensure that its ownership of the bottling company does not give certain Coca-Cola employees access to commercially sensitive information from its competitor, Dr Pepper Snapple, including marketing information and brand plans. Establishing the firewall and related protocols is a condition for completing the proposed $12.3 billion acquisition. The FTC alleged that without this firewall Coca-Cola would be in a position to use the information to adversely affect competition.

August 2010

Merger of United Airlines and Continental Airlines. (DOJ) - On August 27, 2010, the DOJ announced that it had closed its investigation into the proposed merger of UAL Corporation, the parent of United Airlines Inc., and Continental Airlines Inc. in light of the agreement by United and Continental to transfer takeoff and landing rights (slots) and other assets at Newark Liberty Airport to Southwest Airlines Co. The agreement addressed the DOJ’s principle concerns regarding the competitive effects of the proposed merger.

Acquisition of Penn Traffic Company by Tops Markets LLC. (FTC) - On August 4, 2010, the FTC announced that it had reached a settlement agreement with Tops Market LLC, requiring it to sell seven Penn supermarkets to FTC approved buyers within three months, in order for Tops to

proceed with its acquisition of Penn Traffic Company supermarket chain. The FTC alleged that the transaction would have reduced competition in five local areas: Bath, Cortland, Ithaca, and Lockport New York; and Sayre, Pennsylvania.

Acquisition of Alcon Inc by Novartis AG. (FTC) - On August 16, 2010, the FTC announced that it had reached a settlement agreement with Novartis AG, requiring it to sell its drug Miochol-E to Bausch & Lomb Inc, in order for Novartis to proceed with its acquisition of Alcon Inc. Novartis and Alcon were the only two U.S. providers of the class of drugs known as injectable miotics. Without the divesture, the FTC alleged that Novartis’ acquisition of Alcon would harm consumers, who in the past had benefited from the direct competition between the merging parties.

July 2010

Acquisition of A.H. Marks Holdings Limited by Nufarm Limited. (FTC) - On July 28, 2010, the FTC announced that it had reached a settlement agreement with Nufarm Limited, requiring it to sell certain rights and assets associated with two herbicides and modify agreements with competitors for another herbicide, in order for Nufarm to proceed with its acquisition of A.H. Marks Holdings Limited. According to the FTC there were no comparable substitutes on the market for these three herbicides and it was unlikely that any new competitors would enter the market.

Acquisition of LandAmerica Financial Inc subsidiaries by Fidelity National Financial Inc. (FTC) - On July 16, 2010, the FTC announced that it had reached a settlement agreement with Fidelity National Financial Inc., requiring it sell several title plants and related assets in the Portland, Oregon, and Detroit, Michigan, metropolitan areas, and in four other Oregon counties, in order for Fidelity to proceed with its acquisition of three LandAmerica Financial Inc., subsidiaries. Title plants are databases used by insurers to determine ownership of, and interests in, real property. The FTC alleged that without these divestures the acquisition reduced competition in the listed geographical areas.

Acquisition of D.A. Stuart GmbH by Houghton International Inc. (FTC) - On July 14, 2010, the FTC announced that it had reached a settlement agreement with Houghton International Inc., requiring it to sell Stuart’s AHRO business to Quaker Chemical Corporation, in order for Houghton to proceed with its acquisition of D.A. Stuart GmbH. Houghton and D.A. are the two largest suppliers of aluminum hot rolling oil in North America. According to the FTC, the divestiture would enable Quaker to actively compete with Houghton as aggressively in the future as Stuart had done in the past.

June 2010

Acquisition of Alcan’s Medical Flexible Packaging Business by Amcor LTD. (DOJ) - On June 10, 2010, the DOJ announced that it had reached a settlement with Amcor Ltd., requiring it to divest a North Carolina plant used in the development, production and sale of certain bags used for

medical purposes in order to proceed with its acquisition of the Alcan Packaging Medical Flexibles business from Rio Tinto plc. The settlement requires the companies to divest Alcan Packaging’s Marshall, N.C. plant, which manufactures all of Alcan Packaging’s vented bags for medical use. The DOJ alleged that the transaction as originally proposed would eliminate the vigorous competition between the companies in an already concentrated market.

Acquisition of Flying J Inc.’s Travel Center Business by Pilot Corporation. (FTC) - On June 30, 2010, the FTC announced that it had reached a settlement with Pilot Corporation, requiring it to sell 26 travel centers to Love’s Travel Stops and Country Stores in order for Pilot to proceed with its $1.8 billion acquisition of Flying J Inc.’s travel center network. The FTC alleged that without these divestures, the deal between Pilot and Flying J would have reduced competition for certain long-haul trucking fleets for which Pilot and Flying J were the first and second best choices to fulfill their diesel needs.

May 2010

Acquisition of Varian, Inc. by Agilent Technologies, Inc. (FTC) - On May 14, 2010, the FTC announced that it reached a settlement with Agilent Technologies, Inc. and Varian, Inc. to sell three of their product lines in order for Agilent to proceed with its $1.5 billion acquisition of Varian. The parties are two leading global suppliers of high-performance scientific measurement instruments. According to the complaint, the transaction as originally proposed would have reduced competition for three types of scientific measurement instruments. Under the terms of the settlement, the parties are required to divest assets related to the manufacture and sale of three types of scientific instruments: (1) Micro Gas Chromatography instruments, (2) Triple Quadrupole Gas Chromatography-Mass Spectrometry instruments, and (3) Inductively Coupled Plasma-Mass Spectrometry instruments.

Acquisition of Kerasotes Showplace Theaters by AMC Entertainment Group Inc. (DOJ) - On May 21, 2010, the FTC announced it reached a settlement with AMC Entertainment Group Inc. (AMC), requiring it to divest movie theater assets in Chicago, Denver and Indianapolis, in order to proceed with its $275 million proposed acquisition of Kerasotes Showplace Theaters. The DOJ said that the transaction as originally proposed would have substantially lessened competition among movie theaters that show first-run, commercial movies in the Chicago, Denver and Indianapolis metropolitan areas, which could have resulted in higher ticket prices and decreased quality viewing experience for moviegoers. Additionally, the settlement requires AMC to notify the DOJ if it proposes to acquire movie theater assets in these three markets anytime in the next ten years.

April 2010

Merger of Baker Hughes Inc. with BJ Services Company (DOJ) - On April 27, 2010, the DOJ announced it reached a settlement with Baker Hughes Inc. and BJ Services Company to divest

two specially equipped vehicles and other assets so that the parties may proceed with their proposed merger. The DOJ said that without the divestitures, the transaction as originally proposed would have combined two of only four companies that provide specialized pumping services called stimulation services, necessary for producing oil and gas from wells in the U.S. Gulf of Mexico. The complaint alleged that customers viewed Baker Hughes and BJ Services as their first and second choices in stimulation services. Stimulation services prevent sand from interfering with the flow of oil and gas from such wells. The DOJ said that the transaction as originally proposed would have given the merged firm the incentive and ability to raise its prices, leading the other two competitors to bid less aggressively, and would have given the merged firm the opportunity to move one of its vessels out of the Gulf.

March 2010

Merger of Election Systems & Software and Premier Election Solutions Inc. (DOJ) - On March 8, 2010, the DOJ and nine state Attorneys General announced that it will require Election Systems and Software (ES&S) to divest assets it purchased from Premier Election Solutions Inc. (Premier) in September 2009. The assets subject to divestiture are voting equipment systems assets, and include the means to produce all versions of Premier's hardware, software and firmware used to record, tabulate, transmit or report votes, including the Assure 1.2 system, and a license to better serve disabled voters. The DOJ said that without the divestitures, the acquisition would result in higher prices, lower quality, and a reduced incentive to innovate in voting equipment systems in the U.S.

Acquisition of Keystone North America Inc. by Service Corporation International (FTC) - On March 26, 2010, the FTC announced it reached a settlement with Service Corporation International (SCI) in order for SCI to proceed with its acquisition of Keystone North America Inc. (Keystone). SCI is the nation's largest provider of funeral and cemetery services, and Keystone is the fifth largest funeral and cemetery services provider in North America. Under the terms of the consent decree, SCI will be required to divest 22 funeral homes and four cemeteries in 19 local markets in order to proceed with its acquisition of Keystone. The FTC said that without these divestitures, the combination would have “eliminated the intense head-to-head competition between these firms” in each of the 19 geographic markets.

February 2010

Acquisition of the Alcan Packaging Food Americas Business by Bemis Company, Inc. (DOJ) - On February 24, 2010, the DOJ announced that it reached a settlement with the Bemis Company, Inc. requiring Bemis to divest certain assets used in producing and selling flexible packaging for natural cheese and fresh meat in order to proceed with its $1.2 billion acquisition of the Alcan Packaging Food Americas business (Alcan) from Rio Tinto plc. The DOJ said that the acquisition as originally proposed would have combined two of the leading manufacturers of flexible packaging rollstock for chunk, sliced and shredded natural cheese packaged for retail sale and flexible-packaging shrink bags for fresh meat. The proposed settlement requires the

companies to divest all of Alcan's contracts and intellectual property, in addition to its plants located in Catoosa, Oklahoma, and Menasha, Wisconsin. The parties are also required to divest certain other assets necessary to the manufacture of flexible packaging for natural cheese and fresh meat.

January 2010

Joint Operating Agreement between the Daily Gazette Company and MediaNews Group, Inc. (DOJ) - On January 20, 2010, the DOJ announced it reached a settlement with the Daily Gazette Company and MediaNews Group Inc. requiring the companies to restructure their joint operating agreement and take other measures to remedy the alleged anticompetitive effects of their July 2004 transaction. The DOJ originally challenged the transaction in May 2007, when it filed a civil antitrust lawsuit alleging the transaction violated the Clayton and Sherman Acts by consolidating ownership and control of the only two local newspapers in Charleston, West Virginia. Under the terms of the proposed settlement, the companies are required to restructure their 2004 transaction so that MediaNews Group regains independent control over one daily newspaper, the Charleston Daily Mail. MediaNews Group also must offer substantial discounts of the Charleston Daily Mail to rebuild the subscriber base.

Merger of Live Nation Inc. and Ticketmaster Entertainment Inc. (DOJ) - On January 25, 2010, the DOJ and 17 state Attorneys General announced that they reached a settlement with Ticketmaster Entertainment Inc. (Ticketmaster) requiring it to license its ticketing software, divest ticketing assets, and subject itself to anti-retaliation provisions so that it may proceed with its proposed merger with Live Nation Inc. Under the terms of the proposed settlement, Ticketmaster must license ticket software and divest ticketing assets to two different companies, Anschutz Entertainment Group (AEG) and either Comcast-Spectacor or another buyer suitable to the DOJ, and allow both companies to compete head-to-head with Ticketmaster. Ticketmaster will also subject itself to court-ordered restrictions on its behavior. The merged firm will be forbidden from retaliating against any venue owner that chooses to use another company's ticketing services or promotional services. The DOJ said that the proposed settlement will protect competition for primary ticketing, which will maintain incentives for innovation and discounting. The DOJ also said that the merger, as originally proposed, would have substantially lessened competition for primary ticketing in the U.S., which could have resulted in higher prices and less innovation for consumers.

Merger of Danaher Corporation and MDS Analytical Technologies (US) Inc. (FTC) - On January 27, 2010, the FTC announced that it reached a settlement with MDS Analytical Technologies (US) Inc. (MDS) and Danahaer Corporation, requiring MDS to divest assets related to its laser microdissection business in order to proceed with its merger with Danaher. Specifically, MDS will sell assets related to its Arcturus brand of laser microdissection devices to Life Technologies Corp. According to the FTC's complaint, Danaher and MDS are two of only four North American suppliers of these devices, which are used to separate small groups of cells, or a single cell, from larger tissue samples for specialized testing, like DNA analysis, RNA analysis or protein

profiling. Additionally, MDS must make available to Life Technologies Corp. all key Arcturus employees and any other employees necessary to ensure the divestiture is a success. MDS must also provide Life Technologies with all of the intellectual property and patent licenses necessary to compete immediately in the North American laser microdissection market.

August 2011

Acquisition of Hypercom by VeriFone (DOJ) - In May, the Department of Justice challenged VeriFone's acquisition of Hypercom, alleging that the transaction would eliminate competition in point‐of‐sale terminals, asserting that together they are two of only three significant providers of such terminals and control more than 60% of the US market for such terminals used by large retailers. The parties had proposed to divest Hypercom's US business to Ingenico, the other significant US competitor, according to the Department. The Department rejected that proposed remedy as insufficient. The parties have now agreed with the Department that they will divest Hypercom's US business to an entity sponsored by Gores Group LLC within 20 days following entry of the final judgment.

July 2011

Acquisition of certain nuclear pharmacies from Biotech by Cardinal Health (FTC) - The Federal Trade Commission challenged and simultaneously settled that challenge to the 2009 acquisition by Cardinal Health of certain nuclear pharmacies from Biotech. Nuclear pharmacies provide radiopharmaceuticals to hospitals and other healthcare facilities. According to the FTC, as a result of the transaction Cardinal Health obtained a monopoly in the market in Albuquerque, NM and El Paso, TX and the number of competitors in Las Vegas, NV was reduced from three to two. Since the transaction, Cardinal has consolidated its and Biotech's operations into single facilities in each of the three cities. The consent agreement requires Cardinal to reconstitute and divest the facilities it closed in each city within six months, including providing the necessary intellectual property. In addition, Cardinal must allow its customers to terminate their existing contracts with Cardinal and must facilitate the buyer of the reconstituted facilities to hire necessary employees. A monitor has also been appointed.

Acquisition of Paddock Labs by Perrigo (FTC) - The FTC challenged Perrigo's acquisition of Paddock Labs, alleging the transaction would reduce competition in six generic drugs. Simultaneously, the FTC announced a settlement that will require the merged firm to divest six drugs to Watson Pharmaceuticals within ten days of closing. In addition, the consent order requires that, with regard to testosterone gel, that Perrigo forego payments from Abbott Labs that might provide Perrigo incentives to delay the introduction of its generic version. Further,

Perrigo is prohibited from entering into a "pay‐for delay" agreement with Abbott.

June 2011

Acquisition of Tyson Foods’ Harrisonburg plant by George’s Inc. (DOJ) - The Department of Justice settled its challenge to George's Inc.'s acquisition of Tyson Foods' Harrisonburg, VA. chicken processing plant. On May 10, the Department had sued to unwind that unreportable acquisition. According to the Department's press release: "The settlement requires that George’s make capital improvements to the Harrisonburg chicken processing plant that will lead to a significant increase in the number of chickens that will be processed at the facility. The improvements include the installation of a special freezer and deboning equipment, which will allow George’s to produce a variety of highly valued products at both its Harrisonburg and Edinburg facilities in the Shenandoah Valley. As a result of these improvements, George’s will have the incentive and ability to increase local poultry production, thereby increasing the demand for grower services and averting the likely adverse competitive effects arising from the acquisition. In addition, the division will monitor George’s efforts to improve the plant until the new equipment is installed and operational.

Acquisition of Talecris Biotherapeutics by Grifols S.A. (FTC) - The Federal trade Commission reached a settlement to resolve competitive concerns the agency had with Grifols, S.A.'s acquisition of Talecris Biotherapeutics. According to the FTC, the acquisition, which was announced in June 2010, would have, absent the settlement, resulted in reduced competition in three blood plasma‐derived products: immune globulin, albumin and plasma‐derived Factor VIII. The Commission asserts the transaction would have given the combined firm an approximately 30% share of the US immune globulin market with only three significant players remaining, approximately 26% of the US market for albumin with only four significant competitors remaining, and approximately 27% of the US market for pdFactor VIII with only three main competitors remaining. The Commission alleged that the post‐transaction market structures for these products would increase the potential for coordinated interaction among the remaining players. The settlement requires that Grifols divest certain assets associated with these products to Kedrion, which produces plasma‐derived products outside the US but would be a new entrant in

the US. Grifols is also required to manufacture certain private‐label products for Kedrion for seven years.

May 2011

Agreement between Irving Oil Terminals and ExxonMobil (FTC) - Irving Oil Terminals and the Federal Trade Commission announced an agreement to resolve the FTC's concerns about Irving’s 2009 agreement to buy certain petroleum terminal and pipeline assets in Maine from ExxonMobil by requiring Irving to divest its rights to ExxonMobil's Bangor terminal and 50% of ExxonMobil's South Portland terminal as well as an intrastate pipeline between the two. The divestitures will be made to Buckeye Partners. The State of Maine separately entered into a similar decree with Irving. The FTC's press release, with links to the papers, can be found at. The State of Maine's press release can be found at http://www.maine.gov/tools/whatsnew/index.php?topic=AGOffice_Press&id=248381&v=article

Proposed Acquisition of Alberto-Culver by Unilever (DOJ) - The Department of Justice challenged Unilever's proposed acquisition of Alberto‐Culver. Simultaneously, DOJ announced

a settlement which requires the parties to divest two brands of hair care products. According to DOJ, the parties are significant competitors in the markets for value shampoo, value conditioner and hairspray. Without the divestitures, DOJ alleges, Unilever would have become one of only two significant competitors in value shampoo and conditioner with a post‐merger share of approximately 90%. In hairspray, Unilever would have had about a 46% share in a "highly concentrated market." The settlement requires the parties to divest Alberto‐Culver's VO5 brand and Unilever's Rave brand. DOJ noted in its press release close cooperation with the UK's Office of Fair Trading, Mexico's Federal Competition Commission and South Africa's Competition Commission. The press release can be found at.

Merger of Berkshire Hills Bancorp and Legacy Bancorp (DOJ) - The Department of Justice reached an agreement with Berkshire Hills Bancorp and Legacy Bancorp, which are seeking to merge, that will resolve the Department's antitrust concerns about the transaction. Under the agreement, the parties will sell four branches in Berkshire County, Massachusetts. The Department said that without the divestitures the merger would have harmed competition in local markets for retail banking or small business banking services. The transaction is subject to final approval by the Office of Thrift Supervision.

April 2011

Acquisition of Baxter Healthcare by Hikma Pharmaceuticals (FTC) - The FTC challenged Hikma Pharmaceuticals' proposed acquisition of Baxter Healthcare's injectable pharmaceutical business. At the same time, it announced a settlement that will allow the transaction to proceed conditioned on the divestiture of two drugs. In its complaint, the FTC alleges that the transaction would reduce from three to two the number of sellers of injectable phenytoin, an anti‐convulsive, and injectable promethazine, used for a number of conditions including allergies, nausea, and post‐surgical pain. To settle the matter, Hikma must, within ten days of the acquisition, divest

certain assets related to injectable phenytoin and promethazine to X‐Gen Pharmaceuticals. The FTC's press release can be found at.

Acquisition of ITA Software by Google (DOJ) - DOJ announced that it has reached a settlement with Google that will allow Google to acquire ITA Software, a provider of airfare pricing and shopping systems in the United States. According to DOJ, under the agreement Google will be required to continue to license ITA' software to airfare websites on "commercially reasonable terms." Google will also be required to continue to fund research and development of the product at similar levels to what ITA has invested in recent years. Google will also have to implement firewall restrictions to prevent "unauthorized use" of information gathered from ITA's customers and will be prohibited from entering into agreements with airlines that would "inappropriately restrict the airlines' right to share" information with Google's competitors. Finally, the agreement sets up a formal reporting mechanism for complaints.

Acquisition of Healthcare Waste Solutions Inc. by Stericycle (DOJ) - DOJ reached a settlement with Stericycle Inc. that will allow Stericycle to proceed with its acquisition of Healthcare Waste Solutions Inc. The settlement requires Stericycle to divest a medical waste transfer station in the Bronx, New York to a buyer approved by the Department. According to the complaint, Stericycle and Healthcare Waste Solutions together have about 90 percent of the New York City

metropolitan area's infectious waste treatment market and the transaction would reduce the number of competitors with local transfer stations from three to two. The State of New York joined the complaint and the settlement.

March 2011

Acquisition of Foremost Farms Consumer Products Division by Dean Foods (DOJ) - The Department of Justice settled the litigation challenging Dean Foods' 2009 acquisition of Foremost Farms' Consumer Products Division. That acquisition was not reportable under the HSR Act and DOJ learned of it after it was consummated. in January 2010, DOJ, along with the states of Wisconsin, Illinois and Michigan, filed suit seeking divestiture of the assets Dean Foods acquired in the transaction. In April 2010, the court denied Dean Foods' motion to dismiss. The proposed settlement requires Dean Foods to divest a "significant" milk processing plant in Wisconsin plus related assets. Dean Foods is also required to notify the Department before it makes any acquisitions of milk processing plants with a value of more than $3 million. The states joined the settlement, and Michigan also entered into a separate settlement to address competitive concerns regarding school milk there. DOJ's press release can be found at.

January 2011

Acquisition of NBC Universal Inc. by Comcast Corp (DOJ) - On January 18, 2011 the DOJ announced it reached a settlement agreement with Comcast Corp. and General Electric Co’s subsidiary NBC Universal Inc requiring programming to be licenses to online competitors to Comcast’s cable TV services on benchmarked rates and terms. The parties also agreed to subject themselves to anti-retaliation provisions. The DOJ alleged that the proposed settlement would preserve new content distribution models that offer more products and greater innovation, and that have the potential to provide consumers access to their favourite programming on a variety of devises in a wide selection of packages. The DOJ worked closely and coordinated its remedy with the FCC.

November 2012

Star Atlantic Waste Holdings L.P./Veolia ES Solid Waste Inc. (DOJ) – Star Atlantic and Veolia agreed to divest commercial waste collection or disposal assets in New Jersey and Georgia in order to proceed with Star Atlantic’s $1.9 billion acquisition of Veolia. The assets – five transfer stations, a landfill and three commercial waste collection routes – were owned by Veolia.

Amerigroup Corp./WellPoint Inc. (DOJ) – Amerigroup agreed to sell its subsidiary Amerigroup Virginia Inc. in order to proceed with WellPoint’s proposed acquisition of Amerigroup. Amerigroup and WellPoint were the only providers of Medicaid managed care plans in Northern Virginia. The companies had revenues of $6 billion and $60.7 billion, respectively.

Hertz Global Holdings, Inc./ Dollar Thrifty Automotive Group, Inc. (FTC) – Hertz agreed to sell its Advantage Rent A Car business and the rights to operate 29 Dollar Thrifty airport locations in order to proceed with its $2.3 billion acquisition of Dollar Thrifty. Hertz sold the majority of the interests to Franchise Services of North America, Inc. and Macquarie Capital (USA) Inc. The FTC alleged the merger would have harmed competition at 72 airports.

October 2012

Universal Health Services, Inc. (UHS)/Ascend Health Corporation (FTC) – In order to proceed with its $517 million acquisition of Ascend, UHS agreed to sell an acute inpatient psychiatric facility. The FTC alleged that the deal as proposed would have eliminated competition in the area of El Paso, Texas, and Santa Teresa, New Mexico. UHS agreed to sell the facility within six months.

Magnesium Elektron/ Revere Graphics Worldwide, Inc (FTC) – The FTC and Elektron settled competition concerns surrounding Electron’s proposed $15 million acquisition of Revere. Elektron agreed to sell the intellectual property and technical know-how used to manufacture magnesium plates for photoengraving applications to Universal Engraving, a Kansas company. The FTC noted that Universal Engraving was positioned to become an effective competitor in the market.

Watson Pharmaceuticals, Inc./Actavis Inc. (FTC) – The FTC required Watson and Actavis to sell the rights and assets to 18 drugs to two competitors as part of a settlement that allowed Watson to proceed with its $5.9 billion acquisition of Actavis. The FTC said the settlement protected competition for 21 current and future generic drugs used to treat a wide range of conditions.

Corning, Inc./Discovery Labware, Inc. (FTC) – To proceed with its acquisition of Discovery Labware, Corning agreed to provide assets and assistance to Sigma-Aldrich Co., LLC to manufacture Corning’s line of tissue culture treated dishes, multi-well plates, and flasks in a manner substantially similar to Corning’s process. Until Sigma was capable of developing such products, Corning agreed to supply the products that would then be sold under the Sigma brand. Coring and Discovery Labware, a division of Becton, Dickinson, were the leading suppliers of such products.

September 2012

Standard Parking Corporation/Central Parking Corporation (DOJ) – To proceed with Standard’s acquisition of Central Parking, the DOJ required the companies to divest interests in at least 107 off-street parking facilities in 29 cities across 21 states. The divesture was part of a settlement arising from the $345 million deal. The 107 facilities generated about $85 million in revenue. The DOJ noted that consumers had benefited from lower parking prices in many urban centres where Standard and Central competed.

Biglari Holdings, Inc./Cracker Barrel Old Country Store, Inc. (FTC) – Biglari agreed to pay $850,000 to settle an FTC allegation that it violated premerger reporting rules in connection with its acquisition of a stake in Cracker Barrel Old Country Store. Bilglari claimed that it was acquiring a passive investment, whereas the FTC alleged Biglari intended to become active in Cracker Barrel’s management.

Novartis AG/Fougera Holdings, Inc. (FTC) – The FTC approved a final order settling charges that Novartis’ $15.1 billion acquisition of Fougera would harm competition in the topical skin care medications market. In the settlement, which was entered into in July 2012, Novartis agreed to end a marketing agreement that allowed it to sell three drugs and return all rights to a fourth generic drug in development to its manufacturer, Tolmar, Inc.

August 2012

Renown Health (FTC) – Renown agreed to release its staff cardiologists from non-compete clauses, allowing up to 10 of them to join competitors’ practices. In 2010 and 2011, Renown bought two cardiologist medical practices in Reno, which together accounted for 88% of the cardiologists in the area. Each cardiologist had signed non-compete provisions with Renown. The FTC challenged the acquisitions as non-competitive and entered into a settlement agreement with Renown.

July 2012

United Technologies (UTC)/Goodrich Corporation (DOJ) – The DOJ required UTC to divest certain assets used in the production of electrical power systems and aircraft engine control systems in order to proceed with its $18.4 billion acquisition of Goodrich Corporation. The deal represented the largest merger in the history of the aircraft industry. Among other terms, the settlement with the DOJ required UTC to divest the portions of Goodrich’s business relating to main engine generators and engine control systems, as well as Goodrich’s shares in Aero Engine Controls.

June 2012

Johnson & Johnson (J&J)/Synthes, Inc. (FTC) – J&J Agreed to sell its system for surgically treating serious wrist factors to Biomet, Inc., thereby allowing its proposed $21.3 billion acquisition of Synthes to proceed. Together, the FTC contended, J&J and Synthes would have had more than 70 per cent of the U.S. market for the wrist fracture treatment systems. While the FTC was concerned with a particular system, J&J opted to sell its entire trauma portfolio to Biomet.

Koninklijke Ahold N.V. Genuardi’s (FTC) – Koninklijke, the parent company of Giant Food

Stores, LLC, agreed to sell a supermarket outside Philadelphia. The divesture allowed Koninklijke to proceed with its acquisition of 16 Genuardi’s supermarket stores, which were owned by Safeway Inc. Otherwise, the acquisition would have reduced the number of supermarkets in the area from three to two.

May 2012

Kinder Morgan, Inc./El Paso Corporation (FTC) – Kinder Morgan agreed to sell three natural gas pipelines and other related assets in the Rocky Mounty region to conclude a $38 billion acquisition of El Paso Corporation. The FTC said that without these divestitures Kinder Morgan would dominate natural gas transportation in five productions areas in the region.

Graco Inc./ITW Finishing LLC (FTC) – The FTC required Graco to sell the global liquid finishing business of Illinois Tool Works Inc. and ITW Finishing LLC as part of a settlement that would allow Graco to acquire several ITW businesses for $650 million. Graco is a leader in the global market for industrial finishing equipment. The FTC contended the merged company would control a dominant share of North American sales and end the previously close competition between the two companies.

April 2012

National Express Corporation/Petermann Partners Inc. (DOJ) – National Express and Petermann agreed to divest eight school bus transportation contracts in order to proceed with a merger. The DOJ said the sale of assets will help ensure continued competition for school bus contracts in the states of Washington and Texas. National Express has revenues of more than $700 million and Petermann has revenues of about $150 million.

CoStar Group/LoopNet (FTC) – In order to complete its $860 million acquisition of LoopNet, CoStar agreed to sell LoopNet’s ownership interest in Xceligent, a provider of U.S. commercial real estate information. In an unusual step, the settlement also required CoStar to lift non-compete provisions and allow customers in longer-term contracts to terminate them early. CoStar also agreed to refrain from bundling products together in ways that could impede its competitors.

March 2012

Humana Inc./Arcadian Management Services Inc. (DOJ) – The DOJ required Humana and Arcadian to divest health plan assets relating to Arcadian’s Medicare Advantage business in 51 counties and parishes across five states. This divestiture was part of a proposed settlement that would allow Humana, a health insurer with revenues of approximately $33.6 billion, to proceed with its acquisition of Arcadian, which had revenues of $622 million.

from three to two.   The State of New York joined the complaint and the settlement.  DOJ's press release in the Stericycle matter can be found at http://www.justice.gov/opa/pr/2011/April/11‐at‐447.html   March 2011 FTC  (DOJ)  The Department of Justice settled the litigation challenging Dean Foods' 2009 acquisition of Foremost Farms' Consumer Products Division.  That acquisition was not reportable under the HSR Act and DOJ learned of it after it was consummated. in January 2010, DOJ, along with the states of Wisconsin, Illinois and Michigan, filed suit seeking divestiture of the assets Dean Foods acquired in the transaction.  In April 2010, the court denied Dean Foods' motion to dismiss.  The proposed settlement requires Dean Foods to divest a "significant" milk processing plant in Wisconsin plus related assets.  Dean Foods is also required to notify the Department before it makes any acquisitions of milk processing plants with a value of more that $3 million.  The states joined the settlement, and Michigan also entered into a separate settlement to address competitive concerns regarding school milk there.  DOJ's press release can be found at http://www.justice.gov/opa/pr/2011/March/11‐at‐388.html. 

Mergers and Acquisitions Committee - DOJ & FTC Consent Decrees September - October 2011

October 2011 (DOJ) Grupo Bimbo / BBU settled with the DOJ and agreed to divest several brands of sliced bread, in order to proceed with its proposed acquisition of Sara Lee’s North American Bakery Business. The DOJ specifically required divestitures for the following geographical areas: San Diego, Los Angeles, San Francisco and Sacramento, Calif.; Kansas City, Kan.; Oklahoma City; Omaha, Neb.; and Harrisburg/Scranton, Penn. The DOJ alleged that in those areas, the parties were 2 of top 3 sliced bread companies and the combined shares ranged from 53 – 63%. The DOJ’s press release can be found at: http://www.justice.gov/atr/public/press_releases/2011/276535.htm. (FTC) In connection with the acquisition of generic pharmaceutical company Cephalon by Teva, the FTC required the parties to divest rights to a cancer pain drug and muscle relaxer. Teva was also required to enter into a supply agreement to allow a competing company to sell Cephalon’s wakefulness drug Provigil in 2012. For the cancer pain drug, the FTC alleged that the combined market share was 80% and that there was only one other generic competitor. While the muscle relaxer drug was not yet commercialized the FTC alleged that the parties were two of a few companies currently developing the drug. As for Provigil, Teva was one of three companies who is eligible for a 180 exclusivity for a generic. The FTC sought to ensure additional competitors for the product during that time frame. The FTC’s press release can be found at: http://www.ftc.gov/opa/2011/10/tevacephalon.shtm September 2011 (FTC) In connection with its proposed acquisition of DSI, Davita, Inc. agreed to divest 29 dialysis clinics to assuage FTC concerns that the transaction would harm competition in 22 geographic markets for the provision of out-patient dialysis services. In 16 of the markets, the FTC alleged that Davita would either hold a monopoly or face one other competitor; in the other 6 geographic markets, the FTC alleged that the parties faced only 2 other competitors. The consent also requires various transition services to be provided for the divested assets, including continuation of physician services and assistance with lease assignments. The FTC’s press release can be found at: http://www.ftc.gov/opa/2011/09/davita.shtm

Mergers and Acquisitions Committee - DOJ & FTC Consent Decrees November – December 2011

December (FTC) The FTC required Valeant Pharmaceuticals International, Inc. to sell three of its skin care drugs as a condition to acquire rival dermatology businesses from Sanofi and Johnson & Johnson for a total of $770 million. Valeant will sell rights to acne treatment BenzaClin and license manufacturing rights of its generic keratosis treatment Efudex to Mylan Pharmaceuticals to acquire Sanofi unit Dermik Laboratories Inc. for $425 million. Valeant will also sell the marketing rights to anti-wrinkle drug Refissa and its generic equivalent to Spear Pharmaceuticals Inc. to acquire Ortho Dermatologics Inc. from Janssen Pharmaceuticals Inc. for $345 million. See http://www.ftc.gov/opa/2011/12/valeant.shtm November (DOJ) In order to close on its purchase of upstate NY banks from HSBC Bank USA N.A., First Niagara Bank N.A. had to divest 26 branches in the Buffalo NY area. The divestitures will include the commercial loans associated with the divested branches. See http://www.justice.gov/atr/public/press_releases/2011/277266.htm

January (FTC) The FTC settled with AmeriGas and Energy Transfer Partners ("ETP"), in AmeriGas' proposed $2.9 billion acquisition of ETP's Heritage Propane business. As part of the settlement, the parties agreed to leave ETP's cylinder exchange program out of the transaction. Here AmeriGas was the #2 provider of consumer propane exchange and ETP was #3. The parties would contract with various stores where consumers purchase propane. The FTC charged that the parties were 2 of 3 competitors able to offer such services to multi-state chains. The parties also agreed that ETP will not sell its cylinder exchange business for two years without prior FTC approval, regardless of whether the transaction would require a premerger HSR filing. Similarly, for the next 10 years, the parties agreed that it will not buy a cylinder exchange business with sales in excess of $22 MM, without prior FTC approval. See http://www.ftc.gov/opa/2012/01/amerigas.shtm.

February 2012  (DOJ)  The DOJ cleared the $4.3 billion International Paper/Temple‐Inland merger  subject to parties’ agreement to divest 3 containerboard mills.  Containerboard is an input into corrugated boxes.  The DOJ allowed the parties to choose 1 out of 2 choices for one of the to‐be‐divested mills. Please see the following link for more information:  http://www.justice.gov/atr/public/press_releases/2012/280125.htm   March 2012  (FTC) The FTC entered into a consent decree with Carpenter Technology Corporation regarding Carpenter’s purchase of Latrobe Specialty Metals, Inc.  The FTC alleged that the acquisition would have reduced from 2‐to‐1 the number of producers of two specific metal alloys used in the aerospace industry.  Carpenter agreed to divest Latrobe’s assets related to these alloys.  Please see the following link for more information:  http://ftc.gov/opa/2012/02/carpenter.shtm  (FTC) The FTC approved the $4.5 billion acquisition of Hitachi Global Storage Technologies Ltd. by Western Digital Corporation conditioned on the sale of assets used to make and sell desktop hard disk drives to Toshiba Corporation.  The FTC had alleged that after the transaction, only two companies—Western Digital and Seagate Technology LLC—would control the global market for desktop hard disk drives.  Please see the following link for more information:  http://www.ftc.gov/os/caselist/1110122/index.shtm