Statistical tables (Tables I-XI) in Exhibit A contain information about the agencies' enforcement interest in transactions reported in fiscal year 1998. The tables provide, for various statistical breakdowns, the number and percentage of transactions in which clearances to investigate were granted by one antitrust agency to the other and the number of merger investigations in which second requests were issued. The tables in Exhibit A show that, in 1998, clearance was granted to one or the other of the agencies for the purpose of conducting an initial investigation in 9.9 percent of the total number of transactions in which a second request could have been issued. The tables also indicate, for example, that 31.9 percent of all clearances granted involved transactions valued at $50 million or less.
Tables I-XI also provide the number of transactions based on the dollar value of transactions reported and the reporting threshold indicated in the notification report. The total dollar value of reported transactions has risen 600 percent during the last six fiscal years from less than $200 billion to over a trillion dollars. (See Figure 3 below.)
Figure 3
Tables X-XI provide the number of transactions based on the industry group 2-digit SIC code in which the acquiring person or the acquired entity derived revenue. Figure 4 illustrates the percentage of reportable transactions within industry groups for fiscal year 1998 based on the acquired entity's operations.(13)
Figure 4
DEVELOPMENTS IN FISCAL YEAR 1998 RELATING TO COMPLIANCE WITH THE PREMERGER NOTIFICATION RULES AND PROCEDURES
1. Compliance
The Commission and the Department of Justice continue to monitor compliance with the premerger notification program's filing requirements and initiated a number of compliance investigations in fiscal year 1998. The agencies monitor compliance through a variety of methods, including the review of newspapers and industry publications for announcements of transactions that may not have been reported in accordance with the requirements of the Act. In addition, industry sources, such as competitors, customers and suppliers, and interested members of the public, often provide the agencies with information about transactions and possible violations of the filing requirements.
Under Section 7A(g)(1) of the Act, any person that fails to comply with the Act's notification and waiting period requirements is liable for a civil penalty of up to $11,000 for each day the violation continues.(14) The antitrust agencies examine the circumstances of each unlawful failure to file to determine whether penalties should be sought. During fiscal year 1998, 30 corrective filings for violations of the Act were received and one enforcement action for civil penalties was brought.
In United States v. Loewen Group, Inc. and Loewen Group International, Inc.,(15) the complaint alleged that defendants violated the Act in August 1996 by acquiring voting securities of a competitor, Prime Succession Inc., an Indiana-based owner and operator of funeral homes and cemeteries. Loewen's acquisition of voting securities of Prime was part of a leveraged buyout of Prime.
