Applied Antitrust Law

Dale Collins
NYU School of Law
Georgetown University Law Center

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Home page
Topical index
Case studies index

14. Merger litigation

 

16. Unilateral conduct

 

 

15. Contractual Merger Antitrust Risk Allocation

 

Reading and class notes
Background materials
Monsanto/Syngenta
Sysco/US Foods

Reference materials

 
Primary Materials
Supplemental Materials

Reading and Class Notes

Reading and class notes

Unit 15 reading

Unit 15 class notes

 

Background Materials

Risk-shifting provisons

Sample Antitrust Risk-Shifting Provisions in M&A Transactions (February 2011) (abridged version)

± Sample Antitrust-Related Provisions in M&A Agreements--2014 Edition
(on AntitrustUnpacked.com)

Reverse breakup fees

Antitrust Reverse Termination Fees (on AntitrustUnpacked.com)

 

Monsanto/Syngenta


Deal

Letter from Hugh Grant, Chairman and CEO of Monsanto, to Michel Demare, Chairman of the Board, and Michael Mack, Chief Executive Officer, Syngenta AG re offer (Apr. 18, 2015)

Syngenta response rejecting offer (Apr. 30, 2015)

± Andrew Pollack & Chad Braymay, Monsanto, in Bid for Syngenta, Reaches for a Business It Left Behind, N.Y. Times Dealbook, May 8, 2015.

Monsanto risk-shifting letter

Letter from Hugh Grant, Chairman and CEO of Monsanto, to the Board of Directors of Syngenta AG re antitrust proposals (June 6, 2015)

Syngenta statement in response to Monsanto's June 6 letter (June 8, 2015)

 

Sysco/US Foods


Deal

± Sysco Corp. & US Foods, News Press Release, Sysco and US Foods Agree to Merge, Creating a World-Class Foodservice Company (Dec. 9, 2013)

± Sysco Corp. & US Foods, Investor Presentation, Sysco's Merger with US Foods (Dec. 9, 2013)

Agreement and Plan of Merger Among USF Holding Corp., Sysco Corporation, Scorpion Corporation I, Inc. and Scorpion Company II, LLC Dated As Of December 8, 2013 (antitrust-related provisions hightlighted)

± Sysco Conference Call to Discuss US Foods Merger Announcement (Dec. 9, 2013)

Background

Sysco Corporation Form 10-K for the period ending June 28, 2014 (excerpts on description of business)

Sysco Corporation Form 10-K for the period ending June 28, 2014

Sysco Corp., Press Release, Sysco Corporation Receives Request for Additional Information from FTC Regarding Proposed US Foods Merger (Feb. 18, 2014)

Sysco Corp., Press Release, Sysco-US Foods Merger Regulatory Review Remains on Track (June 16, 2014)

Sysco Corp., Press Release, Sysco Reaches Agreement to Sell 11 US Foods Distribution Centers to Performance Food Group Contingent on Consummation of Sysco-US Foods Merger (Feb. 2, 2015)

Sysco Corp. Form 8-K (Feb. 2, 2015) (containing Asset Purchase Agreement with Performance Food Group)

Sysco Corp., Press Release, Sysco to Contest Federal Trade Commission's Attempt to Block Proposed US Foods Merger (Feb. 19, 2015)

Sysco Corp., Press Release, Sysco Responds to District Court's Ruling on Merger with US Foods (June 23, 2015)

Sysco Corp., Press Release, Sysco Terminates Merger Agreement With US Foods (June 29, 2015)

Sysco Corp. Form 8-K (June 29, 2015) (reporting on termination of Agreement and Plan of Merger)

Section 13(b) preliminary injunction proceeding

Complaint, FTC v. Sysco Corp., Civ. No. 1:15-cv-00256-APM (D.D.C. filed Feb. 20, 2015)

Docket sheet (downloaded Mar. 5, 2017)

Defendant Sysco Corporation’s Answer to Complaint (Mar. 5, 2015)

Answer of Defendants USF Holding Corp. and US Foods, Inc. (Mar. 5, 2015)

Plaintiff Federal Trade Commission’s Motion for Temporary Restraining Order and Preliminary Injunction (Feb. 20, 2015; public version filed Feb. 24, 2015)

Memorandum in Support of Plaintiff Federal Trade Commission’s Motion for Temporary Restraining Order and Preliminary Injuction (Feb. 20, 2015; redacted version filed Mar. 5, 2015)

Stipulation and Order (Feb. 27, 2015) (entering stipulated TRO)

Protective Order Governing Confidential Material (Feb. 23, 2015)

Parties' Joint Status Report and Respective Proposals for Case Management Order (Feb. 25, 2015)

Defendants’ Motion to Make Public Declarant Names and Affiliations (Mar. 5, 2015)

Defendants’ Memorandum of Points and Authorities in Support of Motion to Make Public Declarant Names and Affiliations (Mar. 5, 2015)

Plaintiffs’ Memorandum iIn Opposition to Defendants’ Motion to Make Public Declarant Names and Affiliations (Mar. 10, 2015)

Defendants’ Reply Memorandum of Points and Authorities in Further Support of Motion to Make Public Declarant Names and Affiliations (Mar. 13, 2015)

Plaintiffs’ Limited Opposition to Defendants’ Motion to Modify the Protective Order to Allow Certain In-House Counsel Access to Confidential Information (Mar. 10, 2015)

Third Party Intervenor Shamrock Food Company’s Limited Opposition to Defendants’ Motion to Modify the Protective Order to Allow Certain In-House Counsel Access to Confidential Information (Mar. 11, 2015)

Memorandum Opinion and Order (Mar. 12, 2015)

Memorandum Opinion and Order (Mar. 18, 2015)

MINUTE ORDER: The court was informed, via a conference call held today, that Defendants notified Plaintiffs last evening at 7:00 pm of their intention to disclose the names and affiliations of all 92 declarants to their employees, as provided for in the Memorandum Opinion and Order. In light of this discussion, the Memorandum Opinion and Order shall be modified as follows: By noon on March 20, 2015, Plaintiffs shall notify Defendants whether any of the third-party declarants intend to file a motion for protective order seeking non-disclosure of their identities to Defendants' employees. Defendants may disclose the identities of any declarants who do not intend to file a motion for protective order, as provided for in the Memorandum Opinion and Order. The FTC shall be permitted to file motions for protective orders, if any, by noon on March 24, 2015, on behalf of third-party declarants. Any such motion shall be no more than five pages, exclusive of exhibits. Defendants may file a response to any motions for protective orders by 5:00 pm on March 25, 2014. Such response shall not exceed ten pages if more than three motions for protective orders are filed; such response shall not exceed five pages if three or fewer motions are filed. No replies shall be permitted. It is further ordered that the conference call previously set for April 3, 2015 shall be rescheduled to April 2, 2015 at 3:00 pm. Counsel for Sysco are directed to circulate a dial-in number in advance of the call, which shall be taken from Courtroom 10 so that any interested members of the public may attend. Signed by Judge Amit P. Mehta on 03/19/2015.

Case Management and Scheduling Order (Mar. 9, 2015)

Protective Order Governming Confidential Material (Mar. 13, 2015) (superseding protective order of February 23, 2015)

Memorandum of Defendants Sysco Corporation, USF Holding Corp., and US Foods, Inc., in Opposition to Plaintiffs’ Motion for a Preliminary Injunction (Apr. 4, 2015)

Amicus Brief of Performance Food Group, Inc. (Apr. 22, 2015; public version filed May 1, 2015)

Reply Memorandum in Further Support of Plaintiffs’ Motion for Preliminary Injunction (
Apr. 29, 2015 ; public version filed May 4, 2015)

Evidentiary hearing:

May 5, 2015 (AM session—opening arguments)
May 6, 2015
May 7, 2015
May 8, 2015 (Mark A. Israel for FTC)
May 11, 2015
May 12. 2015
May 13, 2015 (Jerry Hausman and Tim Brennan for the defendants)
May 14, 2015 (Mark A. Israel and Rajiv B. Gokhale for FTC in rebuttal)--end of hearing

Plaintiffs' Proposed Findings of Fact and Conclusions of Law (May 20, 2015; public version filed ____)

Plaintiffs' Corrected Proposed Findings of Fact and Conclusions of Law (May 22, 2015; public version filed May 26, 2015)

Defendants' Proposed Findings of Fact and Conclusions of Law (May 20, 2015; public version filed May 26, 2015)

Order (June 23, 2015)

Memorandum Opinion (June 23, 2015; public version June 26, 2015) (reported at 113 F.Supp.3d 1)

Sysco Corporation Form 10-Q for the period ending Mar. 28, 2015, at 6-7, 17, 24, 25-26, 31, 46-48 (explaining status of litigation, costs, and litigated fix solution)

Administrative litigation

Complaint, In re Sysco Corp., No. 9364 (F.T.C. issued Feb. 19, 2015) (FTC news release)

 
Commentary

± American Antitrust Institute, Letter to Chairwoman Edith Ramirez,, Federal Trade Commission, re Proposed Merger of Sysco and US Foods (Feb. 25, 2014)

Deborah L. Feinstein, Director, FTC Bureau of Competition, FTC v. Sysco: Old-School Antitrust With Modern Economic Tools, Remarks Before GCR Live, New York (Sept. 18, 2015).

± Diane Bartz & Greg Roumeliotis, Sysco May Face about $1 Billion in Costs If US Foods Merger Dies, Reuters.com, May 15, 2015 ($300 million breakup fee to U.S. Foods, $25 million breakup fee to divestitute buyer Performance Food Group, $265 million to redeem financing, $258 million on integration planning and advisers, $100 million in historical financing costs, and $53 million in computer systems integration)

± Annie Gasparro, Sysco Doesn't Expect US Foods Deal to Close This Year, Wall St. J., Nov. 3, 2014.

± PaRR, Sysco/US Foods Divestitures Not Clear Solution, Industry Sources Say (Oct. 28, 2014)

± Diane Bartz, Sysco Looks to Divestitures to Nail Down US Foods Deal, Reuters.com, Oct. 17, 2014.

± Brent Kendall & Annie Gasparro, FTC Considers Challenge to Food Merger, Wall St. J., Sept. 22, 2014.

± William McConnell, Sysco-US Foods Merger Under Fire From Teamsters, TheStreet.com, Aug. 29, 2014.

± N.Y. Times Editorial Bd., A Potentially Harmful Merger, N.Y. Times.com, Jan. 20, 2014.

± William McConnell, Agencies Vie for Claim to US Foods Takeover, the DealPipeline.com, Jan. 17, 2014.

Letter from Wenonah Hauter, Executive Director, Food & Water Watch, to Deborah L. Feinstein, Director of the Bureau of Competition, Fed. Trade Comm’n (Jan. 8, 2014).

± Annie Gasparro & Jesse Newman, Restaurants Fear Clout of a New Food Giant, Wall St. J., Jan. 6, 2014.

± Lynnley Browning, Sysco Deal Leaves Money on the Food Table, NYTimes.com DealB%k, Dec. 17, 2013

± Robert Cyran, Big Savings Promised in Food Merger, NYTimes.com DealB%k, Dec. 9, 2013.

± David Gelles & Michael J. de la Merced, Sysco to Buy Rival US Foods in Deal Valued at $3.5 Billion, NYTimes.com DealB%k, Dec. 9, 2013.

± The Hale Group, Foodservice Distributors of the Future: The Evolution of the Foodservice Distributor Sector

Reference Materials

Antitrust risk-shifting provisions

 

± Scott A. Sher and Valarie Hogan, Getting The Deal Done: Antitrust Risk—Shifting Provisions In Merger Agreements, Threshold, vol. 12, no. 1 (Fall 2011).

± Darren S. Tucker & Kevin L. Yingling, Antitrust Risk-Shifting Provisions in Merger Agreements after the Financial Collapse, Antitrust Source, Apr. 2009.

Darren S. Tucker & Kevin L. Yingling, Keeping the Engagement Ring: Apportioning Antitrust Risk with Reverse Breakup Fees, Antitrust, Vol. 22, No. 3, at 70 (Summer 2008)

± John D. Harkrider, Risk-Shifting Provisions and Antitrust Risk: An Empirical Examination, Antitrust, Fall 2005, at 52.

 

14. Merger litigation

16. Unilateral conduct