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The purpose of the HSR Act is simple: it is intended to provide the federal antitrust authorities advance notice of large transactions so that they can investigate their competitive effects before closing. But determining the application of the HSR Act is anything but straightforward. This session presented by Dechert LLP partners James Fishkin and Gorav Jindal describes the HSR review process, provides a primer on the jurisdictional requirements for reportability, and discusses best practices to maximize the odds of clearance during the initial waiting period.
I. Identify the HSR review process – Discussion of the key decision-points and events, and their impact on closing an HSR reportable transaction
II. Recognize HSR reportability – Overview of the jurisdictional thresholds, valuation, key exemptions, and the impact of failing to file
III. Understand the importance of pre-deal document creation – Overview of Item 4 documents, the need for a clear procompetitive rationale, and the impact of “bad” documents on the review process
IV. Summarize the initial waiting period – Discussion of best practices during the initial waiting period, the “pull-and-refile” option, customer outreach, and responding to voluntary requests for information
James A. Fishkin combines both government and private sector experience within his practice, which focuses on mergers and acquisitions covering a wide range of industries, including supermarket chains and other retailers, consumer and food product manufacturers, internet-based firms, chemical and industrial gas firms, and healthcare firms. He has been a key participant in several of the most significant litigated antitrust cases in the last two decades that have set important precedents, including representing Whole Foods Market, Inc. in FTC v. Whole Foods Market, Inc. and the Federal Trade Commission in FTC v. Staples, Inc. and FTC v. H.J. Heinz Co. Mr. Fishkin has also played key roles in securing unconditional clearances for many high-profile mergers, including the merger of OfficeMax/Office Depot and Monster/HotJobs. He also served as the court-appointed Divestiture Trustee on behalf of the Department of Justice in the Grupo Bimbo/Sara Lee bread merger.
Mr. Fishkin has been recognized by The Best Lawyers in America, Chambers USA, and The Legal 500 for his antitrust work. Benchmark Litigation has listed Mr. Fishkin as an antitrust “litigation star” and praised his “legal analysis, strategy, and knowledge of government entities.”
Mr. Fishkin has been a speaker at industry and academic conferences, a lecturer to antitrust practitioners at CLE-approved events, and a guest law school lecturer. He has also made educational presentations to antitrust officials from the EU Merger Task Force, several European and South American countries, Japan, South Korea, Russia and the FTC.
Prior to entering private practice in 2002, Mr. Fishkin spent 15 years at the FTC where he had a distinguished career and acquired a deep understanding of complex antitrust and litigation issues. Mr. Fishkin was the lead attorney on many high profile merger investigations, including some of the most significant antitrust matters of the period. Such investigations resulted in successful litigation, major settlements or terminated mergers.
Mr. Fishkin played key roles in several of the FTC’s landmark merger trials, including FTC v. Staples, Inc., 970 F. Supp. 1066 (D.D.C. 1997) (preliminary injunction to prevent merger with Office Depot) and FTC v. H.J. Heinz Co., 116 F. Supp. 2d 190 (D.D.C. 2000), rev’d, 246 F.3d 708 (D.C. Cir. 2001) (reversing district court denial of preliminary injunction to prevent merger with Beech Nut). The Staples and Heinz decisions are frequently cited by judges and scholars in opinions, leading antitrust treatises, articles, and text books for determining when a merger may substantially lessen competition in violation of the Clayton Act. These cases are also discussed by antitrust officials for their impact on current merger law and enforcement practices. Mr. Fishkin’s collective litigation and trial responsibilities included direct and cross-examination of witnesses in federal court, depositions, discovery and formulating trial strategies.
Mr. Fishkin also was the prime architect of the Commission’s supermarket merger enforcement program and he managed virtually all of the major supermarket merger investigations. Some of his prominent supermarket merger enforcement matters included Winn-Dixie/Jitney-Jungle (2001), Kroger/Winn-Dixie (2000), Ahold/Pathmark (1999), Albertson’s/American Stores (1999), Ahold/Giant Food (1998), Albertson’s/Buttrey (1998), Jitney-Jungle/Delchamps (1997), Stop & Shop/Purity Supreme (1995) and Red Apple/Sloan’s-Gristede’s (1995).
Mr. Fishkin also managed or played a significant role in major investigations of mergers between food manufacturers, including General Mills/Pillsbury (2001), Heinz/Vlasic (2001) and KKR/RJR Nabisco (1989). Mr. Fishkin’s tenure with the Commission also included extensive work on mergers involving a variety of other industries, including nonfood retailers, cable networks, cable systems and chemical manufacturers. He was the principal draftsman of the staff recommendation memorandum outlining the various vertical and horizontal theories in Time Warner/Turner (1996). Mr. Fishkin’s experience also included consummated merger investigations, mergers before bankruptcy courts, investigations involving trade association anticompetitive practices and Hart-Scott-Rodino violation investigations which resulted in civil penalties.
Mr. Fishkin received numerous honors at the FTC, including the Distinguished Service award (2002), the Paul Rand Dixon award (2000), the Superior Service award (1996), and the Meritorious Service award (1995). Mr. Fishkin also received the Outstanding Team award (1997).
Gorav Jindal is a skilled antitrust lawyer with superior knowledge of agency practice, procedure and personnel. He combines the quantitative analysis of a background in engineering and economics with the persuasive skills of a litigator and nationally ranked inter-collegiate debater. He guides clients past antitrust obstacles, providing innovative antitrust analyses to clients, whether in defense of a potential or consummated transaction or as a counselor on the full range of business practices.
Mr. Jindal’s practice combines government and private sector experience on behalf of clients in a variety of industries, including pharmaceuticals, energy, health care and life sciences, chemicals, technology, airlines, food and agriculture, construction, online recruiting, supermarkets, travel management, global distribution services and intellectual property. He handles all phases of merger investigations conducted by the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC). He has navigated clients through the antitrust aspects of transformative transactions and antitrust litigation, and was a key member of the team that won Global Competition Review’s antitrust “Matter of the Year” award in 2014.
Of particular focus in Mr. Jindal’s practice is the pharmaceutical industry. He has represented both large and small pharmaceutical companies under investigation by the FTC for price-fixing, improperly listing patents in the Orange Book, entering into illegal patent settlements and allegations of business practices designed to unfairly lengthen the lifecycle of branded drugs under the Hatch-Waxman Act.
Mr. Jindal also has experience handling antitrust litigation matters. He has assisted in the development of litigation strategy for preliminary injunction hearings and complex commercial litigation. He also represents clients that have been targeted in criminal antitrust proceedings, focusing on the plausibility of criminal theories and assessing the likelihood of indictments and convictions.
Prior to joining private practice, Mr. Jindal served in the FTC’s Bureau of Competition. There, he investigated a number of highly publicized transactions, including mergers in the publishing, computer hardware and chemical industries, and was responsible for interviewing and securing testimony, deposing witnesses, preparing expert testimony, assisting in drafting recommendations to the Bureau’s management and drafting settlements.
Mr. Jindal has served as antitrust counsel to health care, energy, pharmaceutical, airline and supermarket chain clients, assisting them in a variety of strategic transactions and litigation, including high-profile mergers and acquisitions. Some of his recent representations include:
University of Michigan, B.S., Industrial and Operations Engineering, B.A. in Economics, 1995
The George Washington University Law School, J.D., 1998
United States Court of Appeals for the Eleventh Circuit
District of Columbia
Great presentation of a very complex topic. THese gentlemen were very impressive!
This was an excellent presentation, in form and substance. I look forward more of this quality and complexity.
Complex concepts explained with clarity.
Worthwhile refresher/update info.
Excellent presentation -- took a complex topic and made it understandable - just the right level of detail and info on how to learn more.
Very good presentation!
graphics of processes were particularly helpful as references
Speakers effectively broke down a complicated topic
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