Antitrust Remedies: Divestiture Actions Pre- and Post-Merger, Implications of Steves & Sons v. JELD-WEN
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Antitrust
- event Date
Thursday, September 23, 2021
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE course will analyze the recent Fourth Circuit Court decision in Steves & Sons Inc. v. JELD-WEN Inc. and its endorsement of divesture as a remedy in private antitrust actions. In addition, the panel will discuss the previous use of divestiture as a remedy in government-initiated actions and how the case expands the remedy to private actions while also extending the timeframe after closing of a merger in which such actions may be pursued.
Ms. Adams has represented clients in a variety of civil litigation and government investigations, and her practice focuses on antitrust investigations and litigation and the antitrust aspects of mergers and acquisitions. Ms. Adams’ clients have included firms in the media and entertainment, financial services, pharmaceutical and manufacturing industries, as well as individual corporate directors. She is a 2019 recipient of the National Bar Association’s 40 Under 40 Nation’s Best Advocates Award and one of the association’s five individual 40 Under 40 awards for Excellence in Leadership.
Mr. Steren devotes a significant portion of his practice to helping healthcare organizations manage the antitrust risks of joint ventures and other business arrangements. He represents healthcare entities and providers in antitrust matters (counseling and litigation), including civil and government investigations and compliance with Hart-Scott-Rodino premerger notification requirements. He also focuses his practice on other complex commercial and civil litigation matters.
Mr. Ownbey focuses his practice on representing and counseling clients on a range of antitrust issues, including the review of mergers and other enforcement matters before competition agencies in the U.S., EU, and around the world. He regularly represents clients before the Antitrust Division of the DOJ, the FTC, State Attorneys General, and various foreign antitrust enforcement agencies. Mr. Ownbey frequently counsels clients through the Hart-Scott-Rodino merger review process and other merger control filings. He has worked with clients across a broad array of industries including healthcare, pharmaceuticals, financial services, cannabis, and energy.
On Feb. 18, 2021, in Steves & Sons Inc. v. JELD-WEN Inc. (Steves), 988 F.3d 690 (4th Cir. 2021), the Fourth Circuit Court upheld an unprecedented divestiture order in an antitrust case brought by a private plaintiff. Because it is the first time the divesture remedy was granted in a private case, the case has significant implications for private antitrust as well as M&A practice going forward.
Divestiture is a customary form of relief in Clayton Act Section 7 enforcement actions brought by the FTC or the Antitrust Division of the DOJ. In Steves, the court reasoned those remedies would be inadequate. Instead, only divestiture of certain assets by JELD-WEN would solve the pricing duopoly resulting from its merger with CMI. While the facts of Steves are unique, the court's reasoning could be applied in many other scenarios.
Steves is also notable because the action was filed four years after the transaction in question closed. The Fourth Circuit affirmed the trial court's conclusion that JELD-WEN failed to establish unreasonable delay by the plaintiff in initiating the lawsuit or prejudice to the defendant. Hence, the required elements of a laches defense were not present. The court's analysis could be applied to future public as well as private actions.
Listen as our authoritative panel discusses this ground-breaking decision and how it may affect private antitrust actions going forward.
- Private antitrust actions and the Clayton Act
- Causes of action
- Remedies granted before Steves
- Steves & Sons Inc. v. JELD-WEN Inc.: case facts, basis of the claim
- Discussion of district court and circuit court decisions
- Allowances of divestiture as a remedy
- Denial of laches as a defense
- Implications for future private antitrust actions and M&A transactions generally
The panel will review these and other important issues:
- Why has divestiture historically been granted only in antitrust enforcement actions brought by government agencies?
- What remedies have traditionally been granted to private plaintiffs in antitrust actions?
- Why was divestiture deemed to be the only appropriate remedy in the Steves case?
- After Steves, what are the limitations on how long a private party can wait to bring an action opposing a merger?
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