Curated by Dechert’s antitrust practice, this comprehensive collection of real-world documents highlights issues that have caused deals unwanted attention from government authorities. This is intended to help develop pro-competitive, fact-based deal themes and to spot hot content that may need to be analyzed or explained.
The Antitrust Merger Hot Documents Collection
2025 Edition
Introduction
Overview Curated by Dechert’s antitrust practice, this comprehensive collection of real-world documents highlights issues that have caused deals unwanted attention from government authorities. This is intended to help develop pro-competitive, fact-based deal themes and to spot hot content that may need to be analyzed or explained. Inclusion in the collection does not necessarily mean that the document supported the government’s case to block a merger. Additional context, explanation, or documents often provide more probative evidence and can rebut use of isolated statements in documents. The Importance of Deal Documents Antitrust agencies give the most weight to deal materials because they reflect senior leadership’s views on the core question: whether the merger may harm consumers. The FTC has shown that “hot documents”—those predicting adverse price or non price harms— can drive enforcement decisions (Horizontal Merger Investigation Data, Jan. 2013). Because deal documents are produced by small teams over a short window, counsel can shape fact based, pro- competitive themes grounded in commercial realities. Ordinary course materials are diffuse and harder to manage, making disciplined deal document drafting a key lever in merger outcomes.
Using Real-World Illustrations to Counsel This roadmap organizes the deal documents by types of common analyses: (a) describing the combined firm; (b) describing the seller; (c) deal rationale; (d) pricing; (e) synergies and valuation; and (f) antitrust risk. As you consider which slides to use, you should keep the following in mind: Audience: Tailor content to counsel, senior management, or bankers. Timing: The timing of the counseling or training – pre-signing, post-signing, or part of the integration planning process – may impact the nature of the guidance. Early preparation is often the best preventive medicine. Themes: Emphasize genuine, pro-competitive deal themes aligned with commercial realities to shape internal and external communications effectively.
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About Dechert’s Antitrust/Competition Practice
Dechert’s global antitrust practice has a well- earned reputation for practical antitrust advice. Across industries and regions, leading companies rely on Dechert’s knowledge of the government process and successful track record securing clearance for the most visible, challenging deals. Dechert is also the creator of the Dechert Antitrust Merger Investigation Timing Tracker, better known as DAMITT. The quarterly report is the leading source of analysis for significant U.S. and EU antitrust merger investigation and litigation trends.
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Table of Contents
A. Describing the Combined Firm
05
C. Deal Rationale
47
E. Synergies and Valuation
92
Beast
06 11 15 17 18 24 26 33
End Price Wars
48 52 55 59 60 62 65 67 70 71
Loss-of-Competition Synergy
93 95 97
Monopoly Oligopoly
Reduce Competition Eliminate Competition Neutralize Competition
Pay a Premium No Cost Saving
Powerhouse Dominance
F. Antitrust Risk
98
Stop Fighting Build a Moat
Likely Outcome Riskier Bidder
99
High Market Share
101 103
Leverage, Clout, or Bargaining Power
Create Barriers to Entry
Nonreportable Structure
Control
Defensive Mergers
Land Grab
B. Describing the Seller
35
Benefit to the Industry
Primary Competitor Main Competitor
36 37 38 39 40 41 42 44
D. Pricing
72
Top Competitor
Projecting Higher Prices Eliminating Price Erosion Pricing Power or Flexibility
73 83 86 89 90 91
Dangerous Competitor
Fierce Competitor Only Competitor Significant Threat Nascent Threat
Stable Prices
Pricing Discipline
Price Integrity
4
A. Describing the Combined Firm
5
BEAST
The combined firm will be a “900-pound gorilla.”
Buyer’s CFO In re Chicago Bridge & Iron Co., Proposed Findings of Fact and Conclusions of Law, at 105 (Feb. 14, 2003)
6
BEAST
Buyer’s management told sales team to “embrace being the gorilla” and boasted it had acquired the “#2 competitor.”
Buyer In re Axon Enter., Inc. and Safariland, LLC, Complaint, at 6-7 (Jan. 3, 2020)
7
BEAST
“We are… the ‘big dog’ of the industry...”
Buyer’s Executive, after closing In re Chicago Bridge & Iron Co., Proposed Findings of Fact and Conclusions of Law, at 105 (Feb. 14, 2003)
8
BEAST
“Our future is both vulnerable and would benefit from Godzilla’s strengths... Our combination gives [our customers] one clear option, eliminating a bloody share war and speeding adoption.”
Chairman of Seller’s Board of Directors U.S. v. Microsoft Corp., Complaint, at 3 (Apr. 27, 1995)
9
BEAST
After the merger, the merged firm can “operate [its] pay-TV business as a ‘cash cow’ while slowly pivoting to new models.”
Buyer U.S. v. AT&T, Inc., Complaint, at 3 (Nov. 20, 2017)
10
MONOPOLY
U.S. v. Bazaarvoice, Inc., DOJ Opening Statement, at 67 (Sept. 23, 2013)
11
MONOPOLY
“They only want us to create a monopoly. In this case, they will, most likely, sooner or later, rationalize us to the ground, toasting us all, freezing our products and milking all the customers for a while.”
Seller’s Division President In re Aspen Tech., Inc., Pretrial Brief, at 32 (May 13, 2004)
12
MONOPOLY
“Prices WILL NOT stay the same, it will almost be a monopoly.”
Seller FTC v. CoStar Grp., Inc., Complaint, at 1 (Nov. 30, 2020)
13
MONOPOLY
U.S. v. Bazaarvoice, Inc., DOJ Opening Statement, at 67 (Sept. 23, 2013)
14
OLIGOPOLY
“Structure: Oligopoly, in addition to [Buyer] only four other major trade publishers.”
Buyer Board Presentation U.S. v. Bertelsmann SE & Co. KGaA, Closing Slides, at 23 (Aug. 19, 2022)
15
OLIGOPOLY
“We have more leverage than we think we do and will have even more when [the] Willis deal is closed… we operate in an oligopoly which not everyone understands.”
Buyer’s Chief Broking Officer U.S. v. Aon plc, Complaint, at 6 (Jun. 16, 2021)
16
POWERHOUSE
Acquisition “will set the table for string of pearls or smaller deals” to become a “Global Premium Fashion Powerhouse.”
Buyer In re Tapestry, Inc., Complaint Counsel’s Pre-Trial Brief, at 5 (Sept. 23, 2024)
17
DOMINANCE
“Market dominance in Western Hemisphere.”
Seller’s Executive In re Chicago Bridge & Iron Co., Proposed Findings of Fact and Conclusions of Law, at 105 (Feb. 14, 2003)
18
DOMINANCE
“Benefits of Combining”: “Dominance of the cryogenic (LNG/LOX/LIN) markets.”
“As a combination, we would be dominant.”
Seller’s Executive In re Chicago Bridge & Iron Co., Proposed Findings of Fact and Conclusions of Law, at 105 (Feb. 14, 2003)
Buyer’s Manager of Business Development U.S. v. Microsoft Corp., Complaint, at 3 (Apr. 27, 1995)
19
DOMINANCE
“Benefits: Dominate the entire simulation market space, and reduce competitive and pricing pressure.”
Buyer’s Executive In re Aspen Tech., Inc., Pre-Trial Brief, at 4 (May 5, 2004)
20
DOMINANCE
“Strategic rationale… Cement [Buyer] as #1 in the US”
Buyer’s CEO U.S. v. Bertelsmann SE & Co. KGaA, Corrected Proposed Findings of Fact and Conclusions of Law, at 11 (Sept. 9, 2022); see also Complaint, at 3 (Nov. 2, 2021); Pre-Trial Brief, at 11 (Jul. 27, 2022)
21
DOMINANCE
“The combined entity would have a dominant position as a market leader.”
“A company may make an acquisition for different reasons. One is certainly to fill gaps in their offerings. However, another
is to build dominance in an existing area of strength.”
Buyer’s Executive U.S. v. AB Electrolux, Complaint, at 3 (Jul. 1, 2015)
Communication to Buyer In re Aspen Tech., Inc., Pretrial Brief, at 33 (May 5, 2004)
22
DOMINANCE
Acquisition enabled buyer to “effectively dominate” the market, and it would not be “require[d] to do much work to maintain or extend” that dominance.
Buyer’s Product Manager FTC v. Facebook, Inc., Complaint, at 29-30 (Dec. 9, 2020)
23
HIGH MARKET SHARE
Post-merger, the two companies “collectively will control almost 90% of the market.”
Seller’s CEO In re Cabell Huntington Hospital, Inc., Complaint, at 3 (Nov. 5, 2015)
24
HIGH MARKET SHARE
The “North American Glass Expansion” would make it “the #1 Player [with a] 49% Market Share.”
Buyer’s Executive In re Ardagh Grp. S.A., Complaint, at 38 (Jul. 1, 2013)
25
LEVERAGE, CLOUT, OR BARGAINING POWER
Customer has “less leverage now due to the recent announcement,” because “our main/only competitor for retirement consulting is [Seller].”
“Why [this target]?... Payer System Leverage.”
Buyer U.S. v. Aon plc, Complaint, at 46 (Jun. 16, 2021)
Presentation to Bidders FTC v. ProMedica Health Sys., Inc., Post-Trial Findings of Fact and Conclusions of Law, at 54 (Sept. 20, 2011)
26
LEVERAGE, CLOUT, OR BARGAINING POWER
“Better integration with the [Buyer] and the addition of [the Seller] will substantially improve [the Buyer’s] leverage.”
Buyer’s Consultant In re Evanston Northwestern Healthcare Corp., Opinion of the Commission, at 16 (Aug. 6, 2007)
27
LEVERAGE, CLOUT, OR BARGAINING POWER
“If you’re bigger, you are able to negotiate better contracts.”
Seller’s Leadership Washington v. Franciscan Health Sys., Complaint, at 4 (Aug. 31, 2017)
28
LEVERAGE, CLOUT, OR BARGAINING POWER
“Partnership would have a lot of negotiating clout.”
Presentation to Seller’s Board FTC v. ProMedica Health Sys., Inc., Post-Trial Findings of Fact and Conclusions of Law, at 2 (Sept. 20, 2011)
29
LEVERAGE, CLOUT, OR BARGAINING POWER
The merger will “strengthen negotiation capability with managed care companies through merged entities.”
The acquisition will provide “the clout of the entire network.”
Buyer’s Board of Directors In re Evanston Northwestern Healthcare Corp., Opinion of the Commission, at 15 (Aug. 6, 2007)
Seller’s Executive to Seller’s CFO St. Alphonsus Med. Ctr. – Nampa, Inc. v. St. Luke’s Health Sys., Ltd., Findings of Fact and Conclusions of Law, at 22 (Jan. 24, 2014)
30
LEVERAGE, CLOUT, OR BARGAINING POWER
“We have to continue strategically on the path to essentiality and the Seller is the key… we become the path to any new payor that wants to serve Philadelphia.”
Buyer’s CEO U.S. v. Thomas Jefferson Univ., Complaint, at 27 (Aug. 20, 2019)
31
LEVERAGE, CLOUT, OR BARGAINING POWER
“[W]e should buy them and own this leverage point…”
Buyer’s Executive New York v. Facebook, Inc., Complaint, at 26 (Dec. 9, 2020)
32
CONTROL
“[Buyer] will have complete control of 100% of the industrial flooded reserve power markets.”
Seller’s CEO In re Polypore Int’l, Inc., Post-Trial Findings of Fact, at 123 (Jul. 17, 2009)
33
CONTROL
“Fundamental Reasons” in support of deal include
“control market share” and “one competit[or] compared to two.”
Seller’s Leadership FTC v. St. Luke’s Health Sys., Ltd., FTC Brief, at 10 (Aug. 13, 2014)
34
B. Describing the Seller
35
PRIMARY COMPETITOR
“Eliminate primary competitor, thereby reducing comparative pricing pressure.”
Buyer’s Co-founder U.S. v. Bazaarvoice, Inc., DOJ Opening Statement, at 2 (Sept. 23, 2013)
36
MAIN COMPETITOR
Merger “would take away [our] main competitor.”
Seller’s Executive FTC v. Wilhelmsen, FTC Brief, at 2 (May 8, 2018)
37
TOP COMPETITOR
“[We] are each other’s top competition when consumers are considering other brands for purchase[.]”
Buyer Presentation FTC v. Tapestry, Inc., 755 F. Supp. 3d 386, 487-488 (S.D.N.Y. 2024)
38
DANGEROUS COMPETITOR
“[Seller] is a ‘strategic’ play on [Buyer’s] part and not based on current financials but the prospect of taking [Buyer’s] most dangerous competitor out of play.”
Email to Seller’s CEO In re Polypore Int’l, Inc., Post-Trial Findings of Fact, at 121 (Jul. 17, 2009)
39
FIERCE COMPETITOR
“I’m pleased to announce that [Seller] will merge with [Buyer]… I know this may be a shock to many of you, as [Buyer] has been our most fierce competitor.”
Seller’s CEO In re Aspen Tech., Inc., Pretrial Brief, at 7 (May 5, 2004)
40
ONLY COMPETITOR
The merger was an opportunity to “tak[e] out [Buyer’s] only competitor, who... suppress[ed] [Buyer’s] price points by as much as 15%.”
Buyer’s CEO to Board of Directors U.S. v. Bazaarvoice, Inc., Complaint, at 3 (Jan. 10, 2013)
41
SIGNIFICANT THREAT
“I remember your internal post about how [the target] was our threat and not [other company]. You were basically right. One thing about startups though is you can often acquire them.”
Seller was “clearly, on their own or owned by a competitor going to create some threat to our important US debit business” and acquisition would be an “insurance policy to protect our debit biz in the US.”
Buyer’s CEO FTC v. Facebook, Inc., Complaint, at 5 (Dec. 9, 2020)
Buyer’s CEO U.S. v. Visa, Complaint, at 4-5 (Nov. 5, 2020)
42
SIGNIFICANT THREAT
“I remember you said to me a long time (6 months ago): ‘we can just buy them’ when I said to you that [target] is the company I fear most. That was prescient! :)”
Buyer New York v. Facebook, Inc., Complaint, at 25 (Dec. 9, 2020)
43
NASCENT THREAT
“The businesses are nascent but the networks are established, the brands are already meaningful and if they grow to a large scale they could be very disruptive to us. These entrepreneurs don’t want to sell… but at a high enough price – like $500m or $1b – they’d have to consider it.”
Recent acquisition “[p]revents probably the only company which could have grown into the next [leader] on mobile… [10]% of our market cap is worth that.”
Buyer’s CEO FTC v. Facebook, Inc., Complaint, at 26-27 (Dec. 9, 2020)
Instant Message from Buyer’s Manager FTC v. Facebook, Inc., Complaint, at 37 (Dec. 9, 2020)
44
NASCENT THREAT
Buyer called seller an “island ‘volcano’ whose current capabilities are just ‘the tip above the water.’”
Buyer’s VP of Corporate Development U.S. v. Visa, Complaint, at 4 (Nov. 5, 2020)
45
NASCENT THREAT
The acquisition will eliminate a rival “poised for transformational growth.”
Buyer U.S. v. Novelis, Inc., Complaint, at 13 (Sept. 4, 2019)
46
C. Deal Rationale
47
END PRICE WARS
“By buying them we will greatly enhance our comps over the next few years and will avoid nasty price wars in Portland (both Oregon and Maine); Boulder, Nashville, and several other cities which will harm our gross margins and profitability.”
Buyer’s CEO FTC v. Whole Foods Mkt., Inc., FTC’s Corrected Brief on Its Motion for Preliminary Injunction, at 1 (Aug. 1, 2007)
48
END PRICE WARS
Acquisition would be “taking out a strong competitor vs. continued competition and price pressure in market.”
Seller’s Chief Strategy Officer U.S. v. Sabre Corp., Complaint, at 17 (Aug. 20, 2019)
49
END PRICE WARS
The merger will stop “tactical ‘knife-fighting’ over competitive deals.”
Buyer’s Co-Founder U.S. v. Bazaarvoice, Inc., Complaint, at 3 (Jan. 10, 2013)
50
END PRICE WARS
Buyer “not interested” in “lead[ing] a new round… of value destruction.”
Buyer’s CFO In re Edgewell Pers. Care Co. and Harry’s Inc., Complaint, at 3 (Feb. 3, 2020)
51
REDUCE COMPETITION
Acquisition would reduce “price pressure” by “removing [a] big competitor.”
Seller’s Private Equity Owner U.S. v. Global Business Travel Grp., Inc., Complaint, at 2 (Jan. 10, 2025)
Under the “Rule of three,” acquisition of #4 player has “potential to reduce price competition.”
Buyer’s Deal Presentation New York v. Deutsche Telekom AG, 439 F. Supp. 3d 179, 235 (S.D.N.Y. 2020)
52
REDUCE COMPETITION
“[W]e… need to consider how much we might lose… each year in a BAU [business as usual] scenario.”
Buyer’s CEO U.S. v. Global Business Travel Grp., Inc., Complaint, at 55 (Jan. 10, 2025)
53
REDUCE COMPETITION
“A merger would accomplish the following: a. Reduce competition.”
Report by Joint Task Force of Merging Parties FTC v. Univ. Health Inc., 938 F.2d 1206,1220 n. 27 (11th Cir. 1991)
54
ELIMINATE COMPETITION
Goal is “to take that competitive offering out through M&A.”
“Elimination of competition will enhance that success, perhaps greatly.”
Buyer’s CFO FTC v. Intercontinental Exch., Inc., Complaint, at 88 (Mar. 9, 2023)
Seller’s Chairman U.S. v. Microsoft Corp., Complaint, at 3 (Apr. 27, 1995)
55
ELIMINATE COMPETITION
“The big [value created by the acquisition]… is removal of the competitive threat.”
Buyer’s CEO FTC v. Procter & Gamble Co., Complaint, at 2 (Dec. 8, 2020)
“Furthermore we eliminate forever the possibility of [competitors] using their brand equity to launch a competing national natural/organic food chain to rival us.”
Buyer’s CEO FTC v. Whole Foods Mkt., Inc., FTC’s Corrected Brief on Its Motion for Preliminary Injunction, at 1 (Aug. 1, 2007)
56
ELIMINATE COMPETITION
12-year non-compete was a “hidden jewel in the deal.”
Buyer’s CEO In re Axon Enter., Inc., and Safariland, LLC, Complaint, at 9 (Jan. 3, 2020)
57
ELIMINATE COMPETITION
A merger affords the opportunity to “get the rivalry behind us.”
Buyer’s CFO In re Phoebe Putney Health Sys., Inc., Complaint, at 3 (Apr. 19, 2011)
58
NEUTRALIZE COMPETITION
When asked whether a purpose of the acquisition was to “neutralize a potential competitor,” the CEO answered that it was.
Buyer’s CEO New York v. Facebook, Inc., Complaint, at 29-30 (Dec. 9, 2020)
59
STOP FIGHTING
Merger “benefits” include no longer “beating each other up.”
Buyer In re J.M. Smucker Co., Complaint, at 12 (Mar. 5, 2018)
60
STOP FIGHTING
“We are so serious about acquiring new customers that we bought the [company] that has been kicking our butts.”
Buyer In re CDK Global and Auto/Mate, Complaint, at 11 (Mar. 19, 2018)
61
BUILD A MOAT
Acquisition would let buyer “further build[] a competitive moat.”
Presentation to Buyer’s Board of Directors FTC v. Tempur Sealy Int’l, Inc., Complaint, at 5 (Aug. 14, 2024)
62
BUILD A MOAT
The target’s “platform offers a wide moat providing protection against market entrants.”
Seller, Draft Confidential Information Presentation FTC v. CoStar Grp., Inc., Complaint, at 11 (Nov. 30, 2020)
63
BUILD A MOAT
“Our syndication network is a competitive advantage today, but it can become a true competitive moat in the future.”
The merger would “deepen [the buyer’s] protective moat.”
Buyer’s Due Diligence Memo U.S. v. Bazaarvoice, Inc., Complaint, at 19 (Jan. 10, 2013)
U.S. v. Bazaarvoice, Inc., DOJ Opening Statement, at 26 (Sept. 23, 2013)
64
CREATE BARRIERS TO ENTRY
The merger would “further increase… switching costs.”
“Merger Objectives Brainstorm Results… (1) Create barriers to entry as they can be built.”
Buyer’s Due Diligence Memo U.S. v. Bazaarvoice, Inc., Complaint, at 19 (Jan. 10, 2013)
Seller’s Executive In re Chicago Bridge & Iron Co., Proposed Findings of Fact and Conclusions of Law, at 106 (Feb. 14, 2003)
65
CREATE BARRIERS TO ENTRY
The merger will “block entry by competitors.”
Benefits to the merger: “Create significant competitive barriers to entry.”
Buyer’s Executives U.S. v. Bazaarvoice, Inc., Complaint, at 4 (Jan. 10, 2013)
Buyer’s CFO U.S. v. Bazaarvoice, Inc., Complaint, at 4 (Jan. 10, 2013)
66
DEFENSIVE MERGERS
“[The acquisition is] a blocking maneuver so that our largest competitor does not get acquired by a well-funded competitor to [Buyer].”
“Preemptive defensive strategy that prevents them from being acquired by a larger competitor that could use their scale and reach to disrupt us.”
“Competitive defense – We could keep [target] away from competitors.”
Buyer’s Executive In re Aspen Tech., Inc., Pretrial Brief, at 32 (May 5, 2004)
Buyer U.S. v. Bazaarvoice, Inc., DOJ Opening Statement, at 54 (Sept. 23, 2013)
Buyer New York v. Facebook, Inc., Complaint, at 50 (Dec. 9, 2020)
67
DEFENSIVE MERGERS
The acquisition is “a smart defensive move to protect the hospital’s market share.”
Buyer’s CEO In re Reading Health Sys., Complaint, at 8 (Nov. 16, 2012)
Acquisition will “[p]revent[] competitors from acquiring assets and driving less disciplined pricing.”
Buyer U.S. v. Novelis, Inc., Complaint, at 7 (Sept. 4, 2019)
68
DEFENSIVE MERGERS
“[Seller] is the only existing company that has the brand and number of stores to be a meaningful springboard for another player to get into this space. Eliminating them means eliminating this threat forever, or almost forever.”
Buyer’s CEO to Board of Directors FTC v. Whole Foods Mkt., Inc., 548 F.3d 1028, 1045 (D.C. Cir. 2008)
69
LAND GRAB
“A big concern expressed is that we are going to spend 5-10% of our market cap every couple years to shore up our position… I hate the word ‘land grab’ but I think that is the best convincing argument [to justify the recent acquisition] and we should own that.”
Buyer’s Executive FTC v. Facebook, Inc., Complaint, at 37 (Dec. 9, 2020)
70
BENEFIT TO THE INDUSTRY
“I am very happy that we are able to put [the acquisition] together since I think it will be very good for [our] shareholders – and if today’s market reaction is an indication, for yours... too.”
Buyer’s CEO to Competitor’s CEO In re Tronox/Cristal USA, Complaint, at 2 (Dec. 5, 2017)
71
D. Pricing
72
PROJECTING HIGHER PRICES
“Funding for compensation increase… is provided through higher hospital based reimbursement.”
Buyer’s Internal Document St. Alphonsus Med. Ctr. – Nampa, Inc. v. St. Luke’s Health Sys., Ltd., Answer of St. Luke’s Health Sys., Ltd. to Complaint for Permanent Injunction, at 19 (Apr. 5, 2013)
73
PROJECTING HIGHER PRICES
“[A]ffiliation could still stick it to employers, that is, to continue forcing high rates on employers and insurance companies.”
Buyer offers “incredible access to outstanding pricing on managed care agreements. Taking advantage of these strengths may not be the best thing for the community in the long run. Sure would make life much easier right now though.”
Seller’s Marketing Director FTC v. ProMedica Health Sys., Inc., Complaint Counsel’s Post-Trial Findings of Fact and Conclusions of Law, at 56 (Sept. 20, 2011)
Seller’s CEO FTC v. ProMedica Health Sys., Inc., Complaint Counsel’s Post-Trial Findings of Fact and Conclusions of Law, at 53-54 (Sept. 20, 2011)
74
PROJECTING HIGHER PRICES
“St. Luke’s enters into an affiliation / partnership with a local health system with the express purpose to raise reimbursement rates to the level of our competitors.”
“[Seller’s] affiliation with [Buyer] has the greatest potential for higher hospital rates.”
Seller’s Internal Document FTC v. ProMedica Health Sys., Inc., Initial Decision, at 45 (Dec. 12, 2011)
Presentation to Seller’s Board of Directors FTC v. ProMedica Health Sys., Inc., Findings of Fact and Conclusions of Law, at 30 (Mar. 29, 2011).
75
PROJECTING HIGHER PRICES
LOGO
“[I]mplement price increase to non-contract customers on industrial product.”
Buyer’s Due Diligence Report In re Polypore Int’l, Inc., Opinion of the Commission, at 30 (Dec. 13, 2010)
76
PROJECTING HIGHER PRICES
Email to Seller’s Customers FTC v. Staples, Inc., FTC Closing Argument Slides, at 56 (Apr. 25, 2016)
77
PROJECTING HIGHER PRICES
“[T]he FTC is expected to approve the [acquisition], and it is my strong suggestion that [Redacted] consider any and all program offerings from [Buyer] beforehand… will never get a more competitive offer than right now.”
Email to Seller’s Customers FTC v. Staples, Inc., FTC Closing Argument Slides, at 58 (Apr. 25, 2016)
78
PROJECTING HIGHER PRICES
“I am all for taking advantage of hospital based pricing… It would be great to drop a couple of million more to our bottom line, if we think we can do it.”
Buyer’s CFO Washington. v. Franciscan Health Sys., Complaint, at 3 (Aug. 31, 2017)
79
PROJECTING HIGHER PRICES
“Some $24 million of revenue enhancements have been achieved – mostly via managed care renegotiations” and “none of this could have been achieved by either [Buyer] or [Seller]” alone.
A goal of the merger was to “[i]ntegrate with [Seller] and increase fares by 10% on combined businesses.”
“Once we close the deal, our plan would be to execute a price increase…”
Merger Integration Report In re Evanston Northwestern Healthcare Corp., Opinion of the Commission, at 17 (Aug. 6, 2007)
Presentation by Buyer’s CEO U.S. v. Twin America, LLC, Complaint, at 10 (Dec. 11, 2012)
Buyer In re J.M. Smucker Co., Complaint, at 2 (Mar. 5, 2018)
80
PROJECTING HIGHER PRICES
“Merger Objectives Brainstorm Results… Improve pricing to achieve margin growth from 12.5% to 17%.”
[A] potential merger “could increase our ability to charge far better prices and win across all segments.”
“The larger market share created by adding [Seller] has translated to better managed care contracts.”
Seller’s Executive In re Chicago Bridge & Iron Co., Proposed Findings of Fact and Conclusions of Law, at 106 (Feb. 14, 2003)
Statement of Seller’s Executive In re Wilhelmsen, Complaint, at 2 (Feb. 22, 2018)
Finance Committee of Buyer’s Board of Directors
In re Evanston Northwestern Healthcare Corp., Opinion of the Commission, at 66 (Aug. 6, 2007)
81
PROJECTING HIGHER PRICES
Seller had been a customer’s “Trojan horse to f*** us… [customer’s] bill is going up big time.”
Buyer’s Senior VP U.S. v. Sabre Corp., Complaint, at 4 (Aug. 20, 2019)
82
ELIMINATING PRICE EROSION
U.S. v. Bazaarvoice, Inc., DOJ Opening Statement, at 52 (Sept. 23, 2013)
83
ELIMINATING PRICE EROSION
The merger buyer would “ensure [Buyer’s] retail business [was] protected from direct competition and premature price erosion.”
Memo to Buyer’s Board of Directors U.S. v. Bazaarvoice, Inc., Complaint, at 4 (Jan. 10, 2013)
84
ELIMINATING PRICE EROSION
“[T]here is value in taking control of this ‘segment’ by not encouraging a race to free [and] preventing it through acquisition.” Buyer will “[r]egain control of industry pricing and avoid further price erosion.”
“[Buyer] estimated that its acquisition of [Seller] would avert the need for [Buyer] to reduce [its] pricing by 5-15% to maintain [its] market share.”
Buyer Executive U.S v. Deere & Co., Complaint, at 14 (Aug. 31, 2016)
Buyer’s Executive U.S. v. H&R Block, Inc., Complaint, at 2 (May 23, 2011)
85
PRICING POWER OR FLEXIBILITY
The benefits of the combination include “easier decision making as the sole player in [the] double deck market,” and “flexibility regarding pricing.”
Acquisition “[t]akes [a] competitor out of the marketplace and allows [the Buyer] to more effectively manage pricing/trade.”
Joint Venture Proposal U.S. v. Twin America, LLC, Complaint, at 10 (Dec. 11, 2012)
Buyer In re J.M. Smucker Co., Complaint, at 2 (Mar. 5, 2018)
86
PRICING POWER OR FLEXIBILITY
“I would not want to be a big author… now.”
Buyer’s Senior Executive U.S. v. Bertelsmann SE & Co. KGaA, Complaint, at 9 (Nov. 2, 2021)
87
PRICING POWER OR FLEXIBILITY
The combined company would have “increased pricing power.”
The acquisition will allow the buyer to “manipulate the market more effectively” and obtain “[m]ore flexibility in price setting.”
The “[c]ombination… allows… more leeway to set market pricing.”
Buyer’s Financial Model In re Integrated Device Tech., Inc., Complaint, at 2 (Dec. 18, 2012)
Buyer’s Executive U.S. v. Baker Hughes Inc., 713 F. Supp. 3, 12 n. 8 (D.D.C. 1990)
Buyer’s Internal Planning Document U.S. v. First Data Corp., Complaint, at 14 (Oct. 23, 2003)
88
STABLE PRICES
Acquisition may lead to “more stable pricing and fewer promotions in the long term.”
Seller CEO, Message to Board of Directors FTC v. CoStar Grp., Inc., Complaint, at 5 (Nov. 30, 2020)
89
PRICING DISCIPLINE
Seller’s CEO U.S. v. UPM-Kymmene Oyj, Complaint, at 3 (Apr. 15, 2003) The transaction will bring pricing “discipline.”
90
PRICE INTEGRITY
FTC v. Tapestry, Inc., et al., Complaint (Apr. 22, 2024)
91
E. Synergies and Valuation
92
LOSS-OF-COMPETITION SYNERGY
“Synergies from a merger amount to US $40-million per year from loss of competition, rationalization of R&D efforts.”
Buyer’s Executive In re Aspen Tech., Inc., Pretrial Brief, at 32 (May 5, 2004)
93
LOSS-OF-COMPETITION SYNERGY
Benefits to the acquisition: “eliminate feature driven one-upmanship and tactical competition... eliminate the cost in time and money to take [the seller’s] accounts.”
Buyer’s CEO U.S. v. Bazaarvoice, Inc., Complaint, at 4 (Jan. 10, 2013)
94
PAY A PREMIUM
“[N]ot losing strategic position in [business line] is worth a lot of money.”
Buyer Executive FTC v. Facebook, Inc., Complaint, at 27 (Dec. 9, 2020)
95
PAY A PREMIUM
“They have acquired momentum and it will be very difficult to stop them unless the BOARD will approve its purchase at any price (it will be more now than a year ago).”
Buyer’s CEO In re Polypore Int’l, Inc., Post-Trial Findings of Fact, at 98 (Jul. 17, 2009)
96
NO COST SAVING
“[L]et’s be realistic. Employing physicians is not achieving better cost, it’s achieving better profit.”
Buyer’s Board Member FTC v. St. Luke’s Health Sys., Ltd., Complaint, at 4 (Mar. 26, 2013)
97
F. Antitrust Risk
98
LIKELY OUTCOME
“I’m pretty sure that the Department of Justice wouldn’t allow Penguin Random House to buy us…”
Seller’s CEO U.S. v. Bertelsmann SE & Co. KGaA, Complaint, at 11 (Nov. 2, 2021); Pre-Trial Brief, at 1, 12 (Jul. 27, 2022)
“[T]he state and federal government looks at these kinds of things for antitrust… And you can’t create a monopoly. And so you know the reality of it is even if they wanted to, [Buyer] would not have been able to acquire us.”
Seller’s CEO U.S. v. Geisinger Health, Inc., Complaint, at 9 (Aug. 5, 2020)
99
LIKELY OUTCOME
“[W]e have both agreed that a combination of [Buyer and Seller] will raise significant issues under the antitrust laws of the United States and other jurisdictions. …[I]t remains unclear whether there are workable solutions that appropriately address the antitrust risk and the completion risk.”
Seller’s CEO to Buyer’s CEO U.S. v. Halliburton Co., Complaint, at 3-4 (Apr. 6, 2016)
100
RISKIER BIDDER
Buyer faces “a disadvantage in the auction due to antitrust risks, which are likely to be greater in our case than with all other bidders.”
Buyer’s CEO U.S. v. Bertelsmann SE & Co. KGaA, Pre-Trial Brief, at 12 (Jul. 27, 2022)
101
RISKIER BIDDER
“[T]he notable area of overlap” is “ground aviation fuel filtration.” Should we be “forthcoming” about this “aviation antitrust potential”?
Buyer’s VP to Seller’s President U.S v. Parker-Hannifin Corp., Complaint, at 3 (Sept. 26, 2017)
102
NONREPORTABLE STRUCTURE
Deal structure was “[k]inda smart really” because it “[d]oes not require AG [Attorney General] approval.”
Buyer U.S. v. Geisinger Health, Inc., Complaint, at 9 (Aug. 5, 2020)
103
The Antitrust Merger Hot Documents Collection, Second Edition (2025) © 2025 Dechert LLP. All rights reserved. This publication should not be considered as legal opinions on specific facts or as a substitute for legal counsel. It is provided by Dechert LLP as a general informational service and may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome. Dechert internationally is a combination of separate limited liability partnerships and other entities registered in different jurisdictions. Further details of these partnerships and entities can be found at dechert.com on our Legal Notices page.
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