Corporate mergers may not be as easy to get past antitrust scrutiny as most business executives may think.
Despite an increased willingness on the part of the Justice Department and the Federal Trade Commission to approve deals that marry major players in the same industry, a recent court injunction against one big merger shows that substantial hurdles still remain. "The court wishes to stress that it is not bound in any way by the determination made by the Federal Trade Commission in this case," U.S. District Judge Alvin I. Krenzler in Cleveland wrote in blocking the sale of the KitchenAid line of appliances to Whirlpool Corp.
The objections to the deal raised by two other appliance makers, Magic Chef and White Consolidated, were sound enough to warrant a full trial of the antitrust charges, Krenzler ruled on July 3, after five weeks of hearings in White Consolidated v. Whirlpool. The FTC had approved the merger.
The key disagreement is over the "fix it first" approach popularized in the Reagan administration. This essentially tells companies planning a merger with potential anticompetitive problems that the deal can go through if the two firms come up with a plan to cure those problems before the marriage is consummated. Now Krenzler has taken a much tougher line on just what constitutes a cure.
Whirlpool and Dart & Kraft, owner of the KitchenAid operation, knew that the sale would put too much of total U.S. dishwasher production into Whirlpool's hands: The two companies rank third and fourth in the field, respectively, and together have about one-quarter of the total market. Their plan was to sell the KitchenAid Kentucky dishwasher plant to Emerson Electric Co., which has been selling dishwashers made by other companies under its In-Sink-Erator brand name. With the new plant, Emerson would make its own In-Sink-Erator machines and also manufacture machines carrying the KitchenAid brand for Whirlpool. The lawyers designing the merger argued that by replacing KitchenAid in the dishwasher market with Emerson, there would be no decrease in competition.
The contracts drawn up for the Kentucky plant sale, however, put some strings on Emerson: It would not be able to sell the machines in its line under the private brands used by major retailers, or to distribute them through any channels other than its own In-Sink-Erator network.
Krenzler says those restraints keep Emerson from being a full-fledged competitor, and lend credence to warnings by Magic Chef and White Consolidated that after Emerson fulfills its contract to supply Whirlpool for five years -- at a guaranteed 20 percent profit -- it might just walk away from the business.
The lesson for those putting together other mergers is that a simple sell-off of assets may not be enough to fix anticompetitive problems, and that at least some judges are going to be a lot more restrictive than the government antitrusters.
In other cases, courts ruled that:
*Federal bankruptcy judges can step in and stop a National Labor Relations Board proceeding. The NLRB, looking into charges that a company had unfairly modified an existing union contract, wanted to gather facts on the case at a hearing. But the bankruptcy judge halted the investigation, fearing that the labor board might take actions that would threaten the assets of the company that was trying to come out from under its debts. The U.S. Court of Appeals in St. Louis agreed that the bankruptcy judge has the power to make such an order stick.(NLRB v. Superior Forwarding, May 23)
*Litigious clients have a new claim on which to sue brokers. The Securities & Exchange Commission has long had a rule that securities firms that offer customers margin accounts must give them written details about the interest rates that will be charged and how the interest will be computed. The U.S. Court of Appeals in Philadelphia now has decided that that rule can be enforced, not only by the SEC, but also by individual customers who want to bring damage suits. Approving such suits furthers the goal of securities laws to stamp out deception, the judges explained. (Angelastro v. Prudential-Bache. June 12)
*A convertible is so obviously a dangerous car that it is tough for anyone injured in a rollover accident to collect damages from the maker. The U.S. Court of Appeals in Chicago, using Wisconsin law, refused to apply strict liability to the designer because the court believed buyers can judge for themselves whether the pleasure of riding in a convertible is worth the risk. That means an accident victim can win compensation from the car maker only by proving actual negligence in not building in the added measure of safety provided by a roll bar. But on that point, the judges upheld a jury finding that there was no negligence, since the extra protection was not worth the extra cost. (Delvaux v. Ford Motor, June 12)