Antitrust Law Daily Wrap Up, WORTH NOTING—Other Antitrust and Trade Regulation developments, (Sep 30, 2015)

ANTITRUST NEWS: FTC Commissioner Maureen K. Ohlhausen discussed her views on the agency's unfair methods of competition (UMC) authority under Section 5 of the FTC Act, including her dissent from the FTC policy statement on the subject, in a September 25 speech to the U.S. Chamber of Commerce in Washington, D.C. In her remarks, entitled "A SMARTER Section 5," the official also noted her support for harmonization of standards for the FTC and Department of Justice in seeking a preliminary injunction (PI) to block a planned merger under the proposed "Standard Merger and Acquisition Reviews through Equal Rules Act" or "SMARTER Act." Explaining her dissent from the UMC policy statement, Ohlhausen said that the statement lacked content and raised more questions than it answered. She also noted lack of internal deliberation and external consultation surrounding the statement. "[T]he policy statement’s combined claim of authority over conduct outside the letter of the antitrust laws, invocation of incipiency, and vague limitations about when to use Section 5 for conduct reachable under the antitrust laws raises the specter of the FTC using UMC to rewrite well-settled areas of antitrust law," she said. With respect to the SMARTER Act, Ohlhausen said that generally supports legislative efforts at making the merger review process as similar as possible across the two antitrust agencies. With respect to proposed changes to the agency's administrative procedures, she cautioned against making the FTC subordinate to the Justice Department in challenging unconsummated mergers or otherwise impinging on the independence of the FTC.

ACQUISITIONS AND MERGERS NEWS: The prospect of systematic under-enforcement in the merger area was discussed in a keynote address delivered by FTC Commissioner Terrell McSweeny at a September 28 dinner preceding Georgetown Law School's Global Antitrust Enforcement Symposium in Washington, D.C. McSweeny's remarks, entitled “A Carpenter is Only as Good as Her Tools: The Importance of Using Our Full Toolbox as Antitrust Enforcers,” focused on the role and nature of empirical evidence in merger enforcement, the continued role of structural presumptions, and the level of evidence the Horizontal Merger Guidelines required to support coordinated effects theories. According to the official, the FTC should base its merger enforcement decisions on the best reasonably available and reliable economic evidence. Also noted were the importance of the market concentration presumption in merger analysis and the continued rigorous application of the Horizontal Merger Guidelines. In addition, McSweeny expressed her view that the antitrust enforcers should not abandon coordinated effects theories in merger review.

ACQUISITIONS AND MERGERS NEWS: A statement issued yesterday by the Canada Competition Bureau summarizes the approach taken by the Bureau in its review of the proposed acquisition by a subsidiary of Renaud-Bray of the retail assets of a division of Archambault pursuant to an Asset Purchase Agreement announced on May 19, 2015. On September 2, 2015, the Bureau issued a No Action Letter (NAL) to Groupe Renaud-Bray Inc. (Renaud-Bray) and Groupe Archambault Inc. (Archambault) indicating that the Commissioner of Competition does not, at this time, intend to make an application under section 92 of the Competition Act in respect of the proposed acquisition. The Bureau concluded that this transaction is unlikely to result in a substantial lessening or prevention of competition in light of, among other things, evidence suggesting that the price of books would not likely be materially higher following the transaction. In reaching its conclusion, the Bureau also took into account competitive dynamics specific to the Quebec book industry, which have resulted in an industry characterized by the presence of numerous remaining small independent bookstores.

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