The DOJ extended its long winning streak (now extending well over a decade) in suits seeking to block mergers as likely to lessen competition substantially in violation of Section 7 of the Clayton Act when Judge Sue L. Robinson of the United States District Court for the District of Delaware enjoined on June 21 the proposed merger of two competitors in the disposal of low-level radioactive waste. Judge Robinson released a public, redacted version of her opinion on July 12 explaining the basis for her decision.
Judge Robinson found that the two companies – Energy Solutions, Inc., which operates a disposal facility in Clive, Utah, and Waste Control Specialists LLC, which operates a facility in Andrews County, Texas – competed directly with each other and that, for certain categories of radioactive waste, they were the only two viable options for customers. Based on this determination, Judge Robinson had no trouble finding that the companies’ high combined market shares (a monopoly in one waste category) were sufficient to trigger a presumption that Energy Solutions’ acquisition of Waste Control Specialists would harm competition.
The principal defense in the case was that Waste Control Specialists was a “failing firm” that would have exited the market if Energy Solutions had not stepped forward to acquire it. Judge Robinson’s opinion explains that, to establish the applicability of that defense, the defendants would have had to have shown a “grave probability of business failure” and that there was “no other prospective purchaser” that would not have presented the same competitive concerns. The court did not need to reach a determination about whether Waste Control Specialists was likely to fail because she found that its parent company had not made a good faith effort to elicit alternative offers from another purchaser “that would pose a less severe danger to competition.”
Because the DOJ filed the suit in November 2016, in the closing stages of the Obama Administration, it reveals little about the Trump Administration’s likely approach to antitrust enforcement. Past Republican administrations have generally shown a greater willingness than Democratic administrations to credit assertions by merging parties that their proposed transaction is likely to generate procompetitive efficiencies and have been more cautious about intervening to block a proposed merger or other anticompetitive conduct. But parties contemplating a transaction that – like Energy Solutions’ acquisition of Waste Control Specialists – might reasonably be characterized by the antitrust agencies as a merger to monopoly in certain markets should still not expect a receptive response by the DOJ or FTC.