According to the complaint, Medco negotiated with pharmaceutical manufacturers, including Merck, concerning placement on the formulary, as well as rebates, discounts and product prices. The complaint alleged that the transaction resulted in the foreclosure of products of manufacturers other than Merck, as well as an increase in pharmaceutical prices. Under the order, Merck, through Medco, was required to maintain an open formulary, and appoint an independent committee of healthcare professionals to determine the inclusion of drugs on the formulary. In addition, Merck was required to ensure that Medco accepts all discounts, rebates or other concessions offered by any pharmaceutical manufacturer. The order also prohibited Merck and Medco from exchanging non-public information.
In Albertson's, Inc., Locomotive Acquisition Corporation, Buttrey Food and Drug Store Company, and FS Equity Partners II, L.P.,(53) the complaint alleged that Albertson's proposed acquisition of Buttrey would lessen competition substantially in the retail sale of food and grocery products in supermarkets in Billings, Bozeman, Butte, Great Falls, Helena and Missoula, Montana; and Casper, Cheyenne, Cody, Gillette and Laramie, Wyoming. According to the complaint, the parties had a combined market share of more than 35 percent in each of these geographic markets. Under the order, Albertson's and Buttrey were required to divest thirteen supermarkets to Smith's Food & Drug Center, Inc., and two supermarkets to Supervalu Holdings, Inc.(54)
In Shell Oil Co., and Tejas Energy, LLC,(55) the complaint alleged that the proposed acquisition by Shell's subsidiary, Tejas Energy, of certain assets of ANR Field Services Company and ANR Production Company (collectively "ANR") from The Coastal Corporation would lessen competition substantially in the provision of natural gas gathering services in Roger Mills, Beckham, Custer, Washita, Caddo and Grady Counties, Oklahoma, and in Wheeler County, Texas. Gas gathering involves the pipeline transportation of natural gas from a wellhead or central delivery point to a gas transmission pipeline or gas processing plant. Tejas was the largest gas gatherer in those areas, and ANR was a substantial competitor in gas gathering. The order required Shell to divest certain portions of ANR's pipeline system in the relevant markets.(56)
In Commonwealth Land Title Insurance Company,(57) the complaint alleged that the consolidation of the operations of Commonwealth Land Title Insurance Company ("Commonwealth") and First American Title Insurance company ("First American") would lessen competition substantially in the production and sale of title plant services in the District of Columbia. According to the complaint, the parties were direct competitors. Prior to the formation of a planned joint venture entity, Commonwealth relocated its operations to the premises of First American. At that time, customers of both parties were required to execute new agreements setting prices, terms and conditions for title plant services that would be provided jointly by the companies. According to the complaint, these actions resulted in increased prices and restricted output. The order required Commonwealth and First American to separate their operations. The order also required Commonwealth to provide refunds to customers who were charged more under the new agreements than under their previous contracts.
In Medtronic, Inc.,(58) the complaint alleged that Medtronic's proposed $530 million acquisition of Physio-Control International Corporation would lessen competition substantially in the research, development, manufacture and sale of automated external defibrillators in the United States. Automated external defibrillators are portable, automated devices used in emergency situations by persons with limited or no medical training, such as police officers, firefighters, and lifeguards, to diagnose and treat persons suffering from sudden cardiac arrest.
