Hot Documents in Merger Investigations

Real World Illustrations

May 29, 2013

Mike CowieDechert LLP

Bravado

The combined firm will be a “900 pound gorilla.”- CFO of buyer

2

In re Chi. Bridge & Iron Co., Proposed Findings of Fact at 105, Feb. 14, 2003.

Bravado

“We are by far the ‘big dog’ of the industry.”

- Executive of the buyer after the completed acquisition

3

In re Chi. Bridge & Iron Co., Proposed Findings of Fact at 105, Feb. 14, 2003.

4

Bravado

In re Integrated Device Tech., Complaint, Dec. 2012.

Bravado

5In re Integrated Device Tech., Complaint, Dec. 2012.

Bravado

6

In re Integrated Device Tech., Complaint, Dec. 2012.

Antitrust Jargon: Monopoly

The merger of Bazaarvoice and PowerReview would create a “[m]onopoly in the market.”

- Executives of thebuyer

7

United States v. Bazaarvoice, Inc., Complaint at 10–11, Jan. 10, 2013.

Antitrust Jargon: Leverage

8

- Consultant for the buyer

In re Evanston Nw. Healthcare Corp., Commission Opinion at 15–16, Apr. 28, 2008.

Antitrust Jargon: Control

9

In re Polypore Internat’l, Inc., Post-Trial Findings of Fact at 122–23, June 17, 2009.

Pricing: Pricing Wars

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- CEO of the buyer

FTC v. Whole Foods Mkt., Inc., FTC’s Brief on its Motion for Preliminary Injunction at 1, Aug. 1, 2007.

Pricing: Pricing WarsThe merger will stop “tactical ‘knife-fighting’ over competitive deals.”

- Co-founder of the buyer

11

United States v. Bazaarvoice, Inc., Complaint at 3, Jan. 10, 2013.

Pricing: Measured Price Increases

- Merger integration report

12In re Evanston Nw. Healthcare Corp., Commission Opinion at 17, Apr. 28, 2008.

Pricing: Undetermined Price Increases

“The larger market share created by adding Highland Park Hospital has translated to better managed care contracts.”

- Finance committee of the board of directors of the buyer

13

In re Evanston Nw. Healthcare Corp., Commission Opinion at 17, Apr. 28, 2008.

Pricing: Preventing Price Decline

“Regain control of industry pricing and avoid further price erosion.”

- Executive of the buyer

14

United States v. H&R Block, Complaint at 2, May 23, 2011.

Pricing: Preventing Price Decline

- Co-founder of the buyer

15

United States v. Bazaarvoice, Inc., Complaint at 2–3, Jan. 10, 2013.

- CEO of the buyer

Entry BarriersThe merger would “further increase . . . Switching costs” and “deepen [the buyer’s] protective moat.”

- Due diligence memorandum prepared by the buyer for the merger

16

United State v. Bazaarvoice, Inc., Complaint at 19, Jan. 10, 2013.

Stop Competition: Take Out

- Email to the CEO of the seller

17

In re Polypore Internat’l, Inc., Post-Trial Findings of Fact at 121, June 17, 2009.

Synergies: Blocking Maneuver

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FTC v. Whole Foods Mkt., Inc., FTC’s Brief on its Motion for Preliminary Injunction at 1, Aug. 1, 2007.

- CEO of the buyer

Synergies: Blocking Maneuver“Intuit and HRB together would have 84% of the digital market and we both obviously have great incentive to keep this channel profitable. Other potential TA purchasers could decide to cut their prices even further to see if they could make large market share gains & build short-term profitability by ‘winning the race to the bottom.’”

- Executive of the buyer

19

United States v. H&R Block, Complaint at 18, May 23, 2011.

Communications and Legal

“There is almost complete overlap between Hysis products and AES suite. . . . AspenTech can become a target for an antitrust lawsuit.”

- Executive of the buyer

20

In re Aspen Tech., Inc., Pretrial Brief at 7, May 5, 2004.

Communicationsand Legal

21

United States v. H&R Block, Inc., Plaintiff’s Memorandum of Points and Authorities in Support of Its Motion for a Preliminary Injunction at 27, Aug. 5, 2011.

Communications and Legal

22

“Hart Scott Rodino – digital precedents for 2 / 3 mergers”

United States v. H&R Block, May 23, 2011.