Championed CVS Health’s US$70 billion acquisition of Aetna, through unprecedented public scrutiny and complex vertical issues to close the largest healthcare deal in history.
- This high-profile transaction had one of the broadest merger investigations, including by the Department of Justice (DOJ), 19 state Attorney Generals (AGs), 38 state insurance departments and Congress.
- Although the deal raised numerous vertical and horizontal issues, Dechert negotiated a favorable settlement with DOJ and several state AGs that required the divestiture of only one business line to resolve a horizontal concern.
- Following the settlement, powerful opposition groups launched an unprecedented legal challenge to the deal under the Tunney Act, a relatively unknown statute that allows for judicial review of DOJ settlements.
- For the first time in the 40-year history of the Tunney Act, the presiding judge held evidentiary hearings with live witnesses, and, after hearing CVS’s witness testimony, upheld the DOJ settlement to clear the deal.
- The landmark transaction was named “Deal of the Year” and “Healthcare Deal of the Year” by The Deal. Global Competition Review also awarded the deal “Merger Control Matter of the Year – Americas.”
Overcame Federal Trade Commission (FTC) concerns to obtain clearance for Fresenius Medical Care North America’s US$2 billion acquisition of NxStage.
- Dechert’s advocacy resolved multiple horizontal and vertical issues, including FTC concerns that the combined firm would have a near-monopoly over dialysis equipment.
- In a challenging and lengthy 14-month review, Dechert negotiated the divestiture of NxStage’s bloodline tubing set business – a very minor divestiture – with the FTC and obtained unconditional clearance in Germany.
CVS Health/Target (drug stores)
Obtained clearance for CVS Health’s US$1.8 billion acquisition of Target’s in-store pharmacy and clinical businesses.
- The deal helped CVS Health became the largest U.S. pharmacy, with the acquisition of pharmacies in more than 1,660 stores in 47 states, and nearly 80 medical clinics.
- Dechert obtained unconditional Federal Trade Commission clearance without remedies, an unmitigated success for our client, and a rare result for a deal undergoing a second request in the retail sector.
American Airlines/Qantas Airways
Obtained Antitrust Immunity (ATI) for a joint business agreement between American Airlines and Qantas Airways.
- This joint venture faced heavy scrutiny from the U.S. Department of Transportation (DOT), which was skeptical that the combination of the largest airline in the United States and the largest airline in Australia would benefit passengers.
- Dechert obtained DOT clearance by developing compelling evidence demonstrating how the joint venture would increase efficiency and benefit passengers.
Seamlessly coordinated simultaneous U.S. and EU clearances for WhiteWave in its US$12.5 billion sale to Danone.
- As two global leaders in food and beverages, Danone and WhiteWave faced scrutiny from both the Department of Justice and the European Commission.
- Dechert’s transatlantic team navigated differences in law, processes, and timing, as well as substantial differences in consumer behavior and market dynamics, in the U.S. and EU to obtain antitrust clearance in both jurisdictions.
Overcame substantial scrutiny to clear Medco Health Solutions’s US$34 billion merger with Express Scripts.
- This transaction, the largest healthcare services deal in history at that time, closed after an intense eight-month investigation by the FTC and 32 state Attorneys General, and hearings by Congress.
- The deal encountered heavy public scrutiny, as competitors launched extensive PR and lobbying campaigns to block the merger.
- Dechert obtained unconditional clearance by showing the FTC that the marketplace will remain intensely competitive and both the Wall Street Journal and New York Times published editorials praising the FTC’s decision to approve.
Jacksons/7-Eleven (Purchase of 63 stores as divestitures)
- Overcame well-publicized challenges to close Jacksons Food Stores’ purchase of divested stores in 7-Eleven’s US$21 billion acquisition of speedway.
- Dechert advised Jacksons Food Stores/Jackson Energy (Jacksons), a vertically integrated and nationally recognized chain of fuel outlets and convenience stores in the Western United States, on its purchase of 63 fuel outlets and convenience stores required as part of a Federal Trade Comission (FTC) consent decree resolving competitive concerns related to 7-Eleven, Inc.’s acquisition of Speedway from Marathon Petroleum Corp.
- Approval of the consent decree required a significant effort and faced well-publicized challenges after 7-Eleven and Marathon controversially elected to close the transaction prior to receiving FTC approval.
Overcoming adverse precedents, Dechert obtained unconditional clearance for OfficeMax’s US$1.2 billion merger of equals with Office Depot.
- The transaction, which sought to combine two of only three major chains of office supply stores, faced an uphill battle, as the Federal Trade Commission (FTC) blocked a similar merger in its landmark 1997 action against Office Depot and Staples Inc.
- Despite the adverse precedent, Dechert secured unconditional clearance after a second request by convincing the FTC that the office supply industry had undergone significant changes since the late 1990s that expanded competition well beyond office supply superstores.
Ritchie Brothers/Iron Planet
Obtained unconditional clearance for Ritchie Brothers's US$758 million acquisition of Iron Planet.
- The transaction combined the world’s largest on-site auctioneer of heavy equipment with the largest online marketplace for heavy equipment, creating the largest auctioneer in the industry.
- Despite considerable scrutiny from the Department of Justice, Dechert was able to obtain unconditional clearance after a second request by demonstrating that combination would not substantially reduce competition in either the on-site or online format.
Shanghai Shenda (Joint Venture)
Cleared Shanghai Shenda’s global joint venture with International Automotive Components (IAC).
- Through this joint venture, Shenda acquired substantially all of IAC’s soft-trim business, encompassing 25 manufacturing plants and technical centers located in 11 countries.
- Dechert seamlessly leveraged a cross-practice, cross-office team to obtain unconditional antitrust clearance of the transaction in five countries.
Advised Monsanto in its landmark US$66 billion all-cash sale to Germany’s Bayer AG.
- Dechert provided strategic advice on merger clearance, media outreach, and engagement with investors and key stakeholders, guiding Monsanto to a successful settlement with the European Commission that allowed the transaction to close.
- The landmark transaction was named “Deal of the Year” for Europe by The Deal. It also won both the global “Matter of the Year” and “Merger control matter of the year – Europe” in the Global Competition Review’s GCR Awards.
Dollar Tree/Family Dollar
Advised Dollar Tree on its US$8.5 billion takeover of rival discount retailer Family Dollar Stores.
- This transaction created the largest discount retailer in North America with more than 13,000 locations.
- The deal faced substantial scrutiny following rival Dollar General’s prior failed attempt to acquire Family Dollar.
- Dechert provided strategic advice to Dollar Tree on divestiture remedies, helping it to secure Federal Trade Commission approval in contrast to Dollar General’s failure.
Defeated the FTC’s lawsuit to clear Evonik’s US$640 million acquisition of PeroxyChem.
- Dechert won at trial, overcoming the FTC’s attempt to block the combination of two of the four largest producers of a chemical.
- At trial, Dechert attacked the FTC’s case on multiple fronts, including by undermining the FTC’s novel market definition and by "litigating the fix" – a defense strategy where the merging parties offer a remedy that the court must consider in assessing the competitive effects of the transaction.
- The judge’s ruling in favor of the merging parties ended the FTC’s five-case winning streak in D.C. federal court and was the first FTC trial loss in a merger case in D.C. federal court since 2007, when Dechert defended Whole Foods in its acquisition of Wild Oats (see below).
US Airways/American Airlines
Resolved Department of Justice (DOJ) litigation to close the US$17 billion merger between US Airways Group and American Airlines.
- The deal, which combined two of the five major airlines at the time, faced substantial challenges, including a DOJ suit to block the merger, union opposition, and scrutiny from Congress and the Department of Transportation.
- Dechert’s aggressive litigation strategy and creative advocacy allowed it to negotiate a favorable settlement with DOJ in which the deal was cleared after divesting certain departure gates and takeoff and landing spots.
Whole Foods/Wild Oats
Obtained clearance despite FTC suit to block Whole Foods’s US$565 million acquisition of Wild Oats.
- Dechert defeated the FTC’s attempt to obtain a preliminary injunction blocking this combination of supermarkets that specialized in natural and organic products.
- Following a remand by the D.C. Circuit, Dechert again defended the merger vigorously in post-consummation litigation, obtaining an advantageous settlement with the FTC in which Whole Foods retained nearly the entire Wild Oats business.
- In Kottaras vs. Whole Foods, Dechert later defeated a proposed class action seeking to challenge the merger by obtaining a decision denying class certification.
DAMITT quarterly reports
A key question for any company is “how will an antitrust investigation affect when I can close on my deal?” To help guide clients and the market on this critical subject, Dechert developed DAMITT —Dechert Antitrust Merger Investigation Timing Tracker.
This quarterly report is a widely used industry benchmark to guide expectations and draft timing provisions in merger agreements in both the U.S. and EU.
With our finger on the pulse of merger enforcement, Dechert’s DAMITT report identifies substantial trends in the theories of harm explored in merger investigations and the outcomes of those investigations. With DAMITT, you can be better prepared for your future transactions.
Boiling Points: Hot documents in antitrust merger cases
How management or a deal team describes its deal in internal communications and strategy documents can significantly impact merger reviews and the likelihood of obtaining antitrust approval. Hot documents often lead to deals being delayed and even blocked.
Through the Boiling Points collection and program, our antitrust lawyers offer in-house lawyers and business teams practical guidance to help prevent costly deal delays or challenges that can stem from hot documents.
GCR EMEA Antitrust Review 2022 Guide: French Merger Control Chapter
Dechert partners Laurence Bary and Mélanie Thill-Tayara have authored the French merger control chapter in Global Competition Review's EMEA guide. The article examines the most recent developments and decisions of note in the French market.
Pharmaceutical Antitrust Guide 2021
Antitrust/competition partners Mike Cowie, George Gordon and Mélanie Thill-Tayara are the editors of Pharmaceutical Antitrust. The insightful and easy-to-use reference guide published by Lexology Getting the Deal Through, provides comparative transatlantic analysis and insights into this industry.
Dominance in the Life Sciences Sector
Mélanie Thill-Tayara is the editor of this yearly overview on dominance in the French life sciences sector, published as a special edition by Concurrences Review.