Paul T. Denis focuses his practice on mergers and other business combinations under antitrust scrutiny. Combining unique insights from his government tenure in the Antitrust Division of the U.S. Department of Justice with diverse private sector experience, Mr. Denis advises on the antitrust implications of business practices, structures transactions to obviate competition law and Hart-Scott-Rodino issues, quietly resolves the most sensitive and complex government investigations, and forcefully litigates to achieve the results needed by his clients. He is Deputy Chair of the firm’s global litigation practice group, a member of the firm’s policy committee, and formerly co-chaired the firm’s antitrust practice.
Law 360 named Mr. Denis as one of eight Competition Law MVPs in the United States for 2012 & 2013. He is perennially ranked as one of the leading antitrust lawyers in Washington, DC by Chambers USA, Benchmark Litigation, Legal 500, The Best Lawyers in America, Who’s Who Legal, PLC Cross Border Competition and Leniency Handbook, and The International Who’s Who of Competition Lawyers and Economists. Chambers Global and Benchmark Litigation have ranked him as one of the leading antitrust lawyers nationally in the United States. Commenting on his skills at advice and persuasion, clients have told reviewers that “Paul Denis is the gold standard for antitrust counsel. His advice is never provided in a vacuum. He readily understands the business context of his advice and counsels accordingly,” and clients have praised his ability to “analyze problems . . . being strategic, commercial and very responsive.” They also observed that he “never gets ruffled, and is aggressive in an effective way on behalf of his clients.”
Mr. Denis has guided numerous high-profile transactions to unconditional clearance including Express Scripts/Medco, Monster/Hot Jobs, Kellogg/Wholesome & Hearty, Travelport/Worldspan, Harrah’s/Horseshoe, and CSX/Norfolk Southern/Conrail. The work of Dechert’s antitrust team on the Express Scripts/Medco transaction received a “Standout” rating and the highest score of the year for corporate law matters in Financial Times’ Innovative Lawyers 2012. Recently, Mr. Denis’ role as antitrust counsel in the high-profile US Airways/American Airlines and OfficeMax/Office Depot mergers was recognized in two Washington Post articles, “American-US Airways Merger is ‘A New Way of Doing Business’” and “Washington Antitrust Lawyer a Common Thread in Two Major Mergers,” as well as an article in The Wall Street Journal, “Dechert Lawyer Helped Keep Mergers on Track: Paul Denis Played a Key Role in OfficeMax, US Airways Deals.”
In other transactions, Mr. Denis has crafted effective settlements to secure closing and preserve the efficiency benefits of the transaction including in Dean Foods/Foremost Farms, DSI Renal/DaVita, Whole Foods/Wild Oats, J&J/Pfizer Consumer Products Division, and Suiza Foods/Dean Foods. In litigation, Mr. Denis has been lead antitrust counsel defending high-profile transactions from government and private attack including Polypore International, Inc. v. Federal Trade Commission (11th Circuit and Supreme Court appeal), United States and Plaintiff States v. Dean Foods Company (E.D. WI), Federal Trade Commission v. Whole Foods Market (D.D.C. and D.C. Cir), and Kottaras v. Whole Foods Market (D.D.C. and D.C. Cir).
While serving in the Antitrust Division, Mr. Denis was the principal draftsman of the United States Department of Justice and Federal Trade Commission 1992 Horizontal Merger Guidelines (noted as “one of the most cited documents of modern antitrust”), which is the foundation for merger guidelines around the world including the current U.S. merger guidelines.
Mr. Denis is also a frequent author and speaker and regularly acts as a media spokesperson on antitrust and merger clearance topics.
Mergers, Acquisitions, Joint Ventures, and Other Business Combinations
- Effective persuasion and creative solutions that preserve the economics of his client’s transactions are the hallmark of Mr. Denis’s work in scores of complex mergers, acquisitions, joint ventures and other business combinations. Frequently, clients call on Mr. Denis in partially regulated industries where application of the antitrust laws is particularly complex.
- Securing unconditional clearance for Medco Health Solutions in its US$29.1 billion merger with Express Scripts Inc., the second largest merger announced in 2011 (behind AT&T/T-Mobile which later foundered under antitrust and regulatory challenges) after an extensive eight month review that involved the FTC, 32 state attorneys general, and two Congressional committees; devising effective antirust allocation provisions for the merger agreement; working closely with the company’s other advisors to develop and execute on complementary government affairs and communication strategies countering a firestorm of opposition.
- Leading the defense of Whole Foods Market against government and private challenge to its US$565 million acquisition of Wild Oats Markets, Inc. In the private action, obtaining plaintiff’s consent to judgment in favor of Whole Foods Market on all counts in her putative treble damage class action challenge to the merger after denial of her motion for class certification and denial of her 23(f) petition seeking interlocutory appeal; on the class certification motion, showing the district court that, given plaintiff’s reliance on a cluster market approach to product market definition, it was impossible to establish impact through common rather than individualized proof; on the 23(f) petition, showing the court of appeals that the plaintiff’s legal issue was one that went to the merits of the underlying antitrust claims, not to class certification, and therefore was inappropriate for 23(f) review. Earlier Mr. Denis defended Whole Foods Markets, Inc. against the FTC’s efforts to enjoin the transaction. The firm was retained more than a week after the complaint was filed and only six weeks before the scheduled hearing date. Mr. Denis’ closing argument was instrumental in focusing the court on the market realities of competition from other supermarkets facing the merging firms and was cited at several critical points in the court’s detailed opinion denying the FTC’s motion for a preliminary injunction. When the FTC later sought to unwind the deal, he orchestrated a novel settlement agreement on terms that were highly favorable to the client.
- Defending Dean Foods Company in the first litigated challenge to a merger brought by the DOJ under the Obama administration. United States and Plaintiff States v. Dean Foods Company, which included the States of Illinois, Michigan and Wisconsin as plaintiffs, related to the Dean Foods’ consummated US$35 million acquisition of fluid milk plants in Wisconsin from the Foremost Farms USA cooperative. After over a year of litigation, and securing an important ruling establishing the obligation of DOJ to produce facts gathered during its pre-complaint investigation, Mr. Denis secured a partial divestiture settlement which largely preserved the efficiency benefits of the deal.
- Crafting for Polypore International, Inc. the appeal to the Eleventh Circuit Court of Appeals from the FTC order in In re Polypore International, Inc. which found unlawful Polypore’s consummated acquisition of Microporous Products, L.P.
- Securing unconditional FTC clearance for the US$225 million acquisition of HotJobs from Yahoo! Inc. by Monster Worldwide, Inc. after a full second request investigation. Both companies operated online job boards. An earlier proposed combination of Monster and HotJobs in 2001 met with resistance from the FTC before HotJobs was sold to Yahoo!
- Managed the antitrust aspects of the competitive sale process and then secured FTC clearance for the US$2.5 billion sale of Inhibitex to Bristol-Myers-Squibb, a 163% premium to Inhibitex’s pre-offer stock price.
- Coordinated global competition law filings and secured clearance for Kellogg’s US$2.7 billion acquisition of Pringles from Proctor & Gamble.
- Guided Centre Partners through another strategic exit and related FTC second request review in connection with Centre’s US$690 million sale of DSI Renal to DaVita which included the up-front divestiture of 29 outpatient dialysis clinics; formulated antitrust risk allocation provisions including a US$27 million breakup fee and a requirement that the buyer picks up seller’s second request expenses.
- Formulating risk allocation provisions for the US$600 million sale by One Equity Partners of Prodigy Health Group, the nation’s largest independent third party administrator (TPA) of self-funded health care plans, to Aetna, one of the nation’s leading diversified health care benefits companies; securing DOJ review of the transaction without a second request investigation despite increased antitrust focus on the health care industry.
- Securing non-action from the FTC in the case of a voluntarily reported inadvertent failure to comply with the requirements of the Hart-Scott-Rodino Act by a high net worth individual in connection with his purchases of the voting securities of a major U.S. public company.
- Marshalling the analysis of market developments to secure early termination of the HSR waiting period after a “pull and refile” of the initial HSR forms related to the sale of Dean Foods Company’s branded Mountain High yogurt business to General Mills, Inc, the manufacturer of Yoplait brand yogurt. The quick clearance of this deal came at a time of increased scrutiny of the dairy industry by the DOJ. A similar strategy was employed to secure clearance of Dean Foods in the sale of its private label yogurt business to Schreiber Foods, Inc. Dean and Schreiber Foods were competitors in the manufacture and sale of private label yogurt products.
- Structuring the auction process for drug wholesaler Kinray, Inc., devised the antitrust risk allocation provisions in the parties’ US$1.3 billion stock purchase agreement, and represented Kinray before the FTC, obtaining clearance for the sale of Kinray to rival Cardinal Health, Inc. without the issuance of a second request. The FTC had successfully sued to block other transactions among drug wholesalers. Kinray was the largest supplier of prescription and OTC pharmaceuticals and other merchandise to independent pharmacies in the greater New York metropolitan area. Cardinal was the second-largest pharmaceutical wholesaler in the U.S.
- Utilizing a pull and refile strategy in connection with the sale of 21st Century Grain Processing (a Falcon Investment Advisors and Sequel Holdings portfolio company) to Viterra Inc. Despite the heightened scrutiny being given by DOJ to transactions in the agriculture sector, Mr. Denis and the Dechert team were effectively able to marshal the market evidence to secure DOJ clearance of this combination of two of the three largest oat millers in North America without a second request.
- Securing the closing of Dean Foods’ US$90 million acquisition of Heartland Farms from Stater Bros. after a second request investigation run in parallel with DOJ’s decision to challenge the Foremost acquisition.
- Structuring the auction process for Pfizer Inc. in its US$16.5 billion sale of its Consumer Health Division to Johnson & Johnson and managing the FTC review process to a successful resolution in 5.5 months, including the divestiture of four products to two up-front buyers, Chattem Inc. and Boehringer Ingelheim.
- Guiding Worldspan through a simultaneous DOJ and European Commission review of the US$1.4 billion sale of the company to Travelport. The U.S. investigation included a detailed second request, and the EC investigation went to a second phase as well. Worldspan and Travelport’s Galileo subsidiary were two of only four firms offering global distribution system services in the U.S. and Europe.
- Securing timely FTC and European Commission approval of Church & Dwight Co., Inc. as the purchaser of the SpinBrush business from Procter & Gamble; both agencies required the divestiture of the SpinBrush business to an up-front buyer approved by the agencies prior to clearing P&G’s US$57 billion acquisition of Gillette.
- Formulating the transaction structure to speed the regulatory process and maximize probability of success for Suiza Foods Corporation’s US$2.5 billion acquisition of Dean Foods Company, creating one of the nation’s leading food and beverage companies with over US$10 billion in annual revenue; representing the company (now called Dean Foods) in settling, without a consent decree, on a fix-it-first basis, concerns raised by DOJ and 19 state attorneys general. At the time of the transaction, Suiza and Dean were the two largest fluid milk processors in the country. DOJ officials have recognized this transaction as one of the DOJ’s most significant investigations and a model of integrated legal and economic analysis.
- Developing the transaction structure to minimize seller’s antitrust risk and ultimately convincing the Federal Trade Commission to close the investigation of the US$1.45 billion acquisition of Horseshoe Gaming Holding Corporation by Harrah’s Entertainment, Inc. The merging firms operated the two largest of four casinos in Northwest Indiana but we were able to use the FTC’s evidence of close competition between Horseshoe and Harrah’s to demonstrate that repositioning by rival casinos was so likely that the transaction should be cleared.
- Implementing a competitive rules joint venture structure to enable CSX Corporation and Norfolk Southern to acquire jointly the stock of Conrail and to conduct competitive operations over “shared asset areas;” securing favorable review of the competitive implications of the US$10.2 billion transaction by both the DOJ and the Surface Transportation Board.
Additional notable clients that Mr. Denis has represented in complex business combinations include Kellogg Company, Gate Gourmet, Fortune Brands, Israel Chemical Ltd, Hotwire.com, Mississippi Chemical Company, Pierce Leahy, and Continental Grain (now ContiGroup).
Mr. Denis possesses a deep understanding of the intricacies of the Hart-Scott-Rodino Act and its implementing regulations. He uses this knowledge to structure transactions and also to represent clients in Hart-Scott-Rodino enforcement investigations.
Other Governmental Investigations
Mr. Denis brings the same skill to bear on civil and criminal antitrust investigations outside of the area of business combinations. He has quietly and effectively resolved investigations touching on alleged price fixing, resale price maintenance, unfair advertising practices, exclusionary distribution practices, and exclusive dealing.