The Federal Trade Commission said Monday it is ready to approve Johnson & Johnson’s $21.3 billion acquisition of orthopedic devices manufacturer Synthes Inc., provided the pharmaceutical giant completes a sale of its global trauma business to orthopedic competitor Biomet.
After J&J announced the megadeal with Synthes—the company’s largest transaction ever—last year, the FTC expressed concerns that the acquisition would inhibit competition in the market for orthopedic devices. The federal regulator’s hesitation focused specifically on volar distal radius (DVR) plating systems, which are used in the surgical treatment of wrist fractures. Noting in its ruling Monday that Synthes and J&J own DVR systems that when combined account for a nearly 71 percent share of the U.S. market, the agency ordered J&J to sell its domestic DVR assets.
New Brunswick, New Jersey–based J&J has been girding for this ruling, and—in order to appease regulators in both the United States and Europe—agreed in April to sell its entire global trauma business, DePuy Orthopaedics Inc. to Warsaw, Indiana–based orthopedic products maker Biomet in a deal worth roughly $280 million.
DePuy, a J&J subsidiary, designs and sells orthopedic devices ranging from replacement hips to surgical tools. The division’s DVR assets were acquired through the 2006 purchase of Miami-based Hand Innovations.
Weil, Gotshal & Manges antitrust head Steven Newborn has been leading a team from the firm serving as antitrust counsel to J&J on the Synthes and Biomet deals. Newborn, the former director of litigation for the FTC’s competition bureau, says the antitrust review conducted by his former agency went very quickly, and that J&J had essentially secured approval of the Synthes deal last fall on the condition that the company divest its DVR assets in the United States.
From that point, J&J still needed to find a buyer for those assets, and also had to contend with further regulatory review by the European Union, which lasted into the early part of this year, Newborn says. As a result of that review, J&J made the decision to go beyond only selling its DVR assets and opted to sell the entire trauma business—a move that Newborn says was ultimately designed to do more than just assuage the concerns of European regulators.
“It made it much easier to sell essentially an ongoing trauma business rather than carving out of the trauma business just the DVR portion, whether it’s U.S. or worldwide,” he says.
The E.U. gave the Synthes deal its blessing in April, and the FTC gave the deal its final push this week by officially accepting J&J’s consent agreement and approving Biomet as the buyer of the J&J business. Newborn expects the Synthes deal to close in a matter of days, with the Biomet deal closing within another 10 days by order of the FTC.
In addition to Newborn, Weil’s team serving as J&J’s antitrust counsel on both transactions also includes partners Steven Bernstein and Ann Malester.
Meanwhile, Cravath, Swaine & Moore corporate partners Robert Townsend and Damien Zoubek are acting as deal counsel to J&J on the DePuy sale after leading the way for the company, a longtime client, on the pact with Synthes last year. (Shearman & Sterling advised Synthes on the deal.)
For its part, Biomet turned to Cleary Gottlieb Steen & Hamilton for legal counsel on the transaction. M&A partners Robert Davis and David Leinwand are leading the firm’s effort.