The Federal Trade Commission ("FTC") recently filed a complaint challenging Magnesium Elektron North America Inc.’s ("MENA") $15 million acquisition of the assets of Revere Graphics Worldwide Inc. ("Revere"), its competitor in the manufacture of photoengraving magnesium plates. Together with the complaint, the FTC filed a consent order including a settlement under which MENA agreed to set up a new competitor in the market for photoengraving magnesium plates, Universal Engraving, Inc., and provide it with the knowledge required to compete as well as certain customer lists and customer contracts.
The FTC claimed MENA’s asset purchase, which occurred nearly seven years ago, was an unlawful merger to monopoly in the market for photoengraving magnesium plates that substantially increased MENA’s ability to exercise market power. Interestingly, the complaint did not allege that MENA had actually engaged in any anticompetitive activity following the merger, but it is reasonable to suspect that MENA engaged in some sort of conduct that drew the FTC’s attention, either directly or through customer complaints.
The FTC’s action is significant both because the transaction occurred so long ago and because the size of the transaction is far below the size that requires pre-merger notification under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 ("HSR Act"). Although the antitrust agencies have the authority to pursue nearly any anticompetitive merger, it is relatively rare for the agencies to challenge a transaction that is so old.
The FTC’s action against MENA’s $15 million asset purchase continues the trend of increasingly aggressive enforcement with respect to non-HSR-reportable mergers under the Obama administration. The FTC and the Department of Justice ("DOJ") have now challenged as many non-HSR-reportable mergers during President Obama’s first term as were challenged during both of President George W. Bush’s terms.
The MENA case serves as a reminder that the lack of an HSR filing obligation does not mean a transaction will not face antitrust scrutiny. Companies should be purposeful in investigating the potential antitrust risks of even relatively low dollar value transactions.