Coming Back

Jenna Greene

Corporate Counsel

08-01-2012

After hitting a record low in 2009, merger activity continued to rebound last year, according to statistics released in June by the Federal Trade Commission and the U.S. Department of Justice.

In fiscal year 2011, 1,450 mergers were subject to review under the Hart-Scott-Rodino Act, according to the antitrust agencies—up 24 percent from 2010. The deals were worth a combined $979 billion, versus $780 billion in 2010.

The Justice Department appears to have been the more aggressive of the two agencies, issuing 34 second requests for documents, compared with 24 such requests by the FTC, for a total of 58. In 2010 the agencies issued a combined 46 second requests. However, the percentage of transactions subject to heightened scrutiny stayed the same: just over 4 percent.

Justice's antitrust division challenged 20 deals in 2011, and filed suit to stop 13 of them. The government successfully thwarted H&R Block's proposed acquisition of 2SS Holdings Inc., while AT&T Inc. abandoned its bid for T-Mobile USA after the suit was filed. The other 11 court challenges were settled by consent decree.

As for the seven other mergers that raised Justice concerns, the parties in two instances abandoned the proposed transactions, in four instances restructured the proposed transactions, and in one instance changed their conduct to avoid competitive problems.

The FTC challenged 17 transactions last year, leading to nine consent orders, three administrative complaints, and five transactions that were abandoned or restructured.

A versions of this story appeared in The National Law Journal, a sibling publication of Corporate Counsel.