Recent actions by the U.S. Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC) serve as reminders that antitrust enforcement does not begin and end with the Sherman Act. On August 20, the DOJ and FTC announced that Berkshire Hathaway Inc. had agreed to pay an $896,000 civil penalty for violating the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act), which requires advance notification to, and approval from, federal regulators for transactions that meet certain thresholds . Notably, Berkshire Hathaways HSR Act violation did not stem from an announced merger, but instead from its failure to report its increased equity stake in wallboard manufacturer USG Corporation when it redeemed convertible USG notes for stock in December 2013.
On August 27, the DOJ announced that it had joined with state attorneys general from Illinois, Iowa and Missouri to file suit in the U.S. District Court for the District of Columbia to block Tyson Foods Inc. s announced acquisition of The Hillshire Brands Company. Pursuant to a settlement filed simultaneously with the complaint, Tyson agreed to divest its sow purchasing business, Heinold Hog Markets, to a DOJ-approved purchaser in order to complete the Hillshire acquisition. The DOJ s press release noted that the divestiture would protect hog breeders by preserving competition in the market for sows. Tyson and Hillshire announced completion of their merger on August 28.
Finally, on August 28, the FTC announced that Prestige Brands Holdings, Inc., the manufacturer of motion-sickness drug Dramamine, had agreed to divest assets and marketing rights for a competing drug, Bonine, in order to complete its previously announced acquisition of Bonine s manufacturer, Insight Pharmaceuticals Corporation. According to the FTC s complaint, Dramamine and Bonine are the two largest over-the-counter motion-sickness drugs.