Dechert Partners Paul T. Denis and James A. Fishkin lead a multi-office Dechert antitrust team in securing unconditional Federal Trade Commission clearance for OfficeMax’s $2.9 billion merger of equals with Office Depot.  The outcome of this 8-month investigation, conducted by the FTC and 10 state attorneys general, is notable in several respects with significant implications for future retailing mergers.

1.   The 3-to-2 merger that wasn’t; clearance turned on establishing multi-channel competition and represents a departure from FTC practice of defining antitrust markets around separate channels of distribution (e.g., supermarkets or drug stores).

2.   Commission decision gives explicit recognition of the impact of internet-based competitors.

3.   Dechert’s presentations featured  persuasive integration of complex econometrics with ordinary course business practices; proving indirectly what cannot be proven directly.

4.   Final decision is contrary to the hallowed precedent of FTC v. Staples.

Please note that Mr. Denis has been involved in some of the most recent merger clearance matters in recent years, including the unconditional clearance of Medco/Express Scripts, the largest deal of 2012.  He is currently representing USAir in its proposed merger with American Airlines.  

Earlier in his career while at the FTC, Mr. Fishkin was the lead attorney on the FTC’s investigation of Staples’ proposed acquisition of Office Depot in 1997 and  is known as the architect of the FTC’s supermarket enforcement policy.

Together Mr. Denis and Mr. Fishkin have secured important transactions for their clients including defeating the FTC’s effort to enjoin the Whole Foods/Wild Oats merger in the most hotly contested merger matter of the last decade, and securing unconditional clearance for the Monster/Hot Jobs merger  after an earlier iteration of the same deal was abandoned in the face of significant FTC scrutiny.