Until early 2020, the US Federal Trade Commission (FTC) had won each of the seven litigated merger challenges that it had brought since 2015. This winning streak ended in January, when US District Court Judge Timothy Kelly denied the FTC’s motion for a preliminary injunction that would have blocked Evonik’s proposed acquisition of PeroxyChem.
The FTC claimed that the tie-up would result in Evonik controlling roughly half of alleged markets for hydrogen peroxide in the Pacific Northwest and the Southern and Central United States, but Evonik’s defense team was able to highlight the agency’s over-simplified approach to both product and geographic market definition. Echoing the defense arguments, Judge Kelly held that the FTC’s arguments for a single relevant product market failed to “recognize[e] how hydrogen peroxide suppliers compete for customers served by its countless end uses [and] account for products’ variations in purity, concentration, stabilizer chemicals, profitability, and even regulatory approval.”
Podcast host Jenn Mellott is joined by Evonik’s lead trial attorneys from Freshfields, Eric Mahr, Andrew Ewalt, and Laura Onken from our Washington, DC office, to discuss the two-week trial and the importance of establishing credibility in the courtroom. Eric, Andrew, and Laura will also discuss lessons that businesses facing potential merger challenges can learn from this rare victory over the FTC.