The Most Interesting CMA Merger Decisions of 2015

Last updated: February 29th 2016

Which were the most interesting UK merger decisions of 2015, in terms of the competition analysis undertaken?

160229-Phase 1 case summary slide

Here are my nominations, chosen from those cases that have completed their passage through CMA scrutiny (whether that was a Phase 1 assessment only or a Phase 2 inquiry as well) and for which a full final decision has been published.

To link straight to the CMA’s published decision for a case, please click on the blue highlighted titles.

Regus Group/Avanta Serviced Offices Group – Phase 1 undertakings in lieu of reference to Phase 2

The CMA found competition concerns in five areas of Central London and accepted divestments and a behavioural remedy to deal with these problems.

Points of interest included:

  • Comments by the CMA on the importance of the timely provision of evidence:
    • “At phase 1 the CMA has limited time to assess whether its duty to refer applies. The earlier that merging parties submit economic analysis supporting their case, the better-placed the CMA will be to assess that evidence and attribute appropriate weight to it. Accordingly, where possible, the CMA encourages merging parties to engage with it prior to commencement of the 40-working-day review period where they are considering submitting economic analysis.” – (Decision – paragraph 40)
  • Statistical analysis by the parties of a previous merger in the sector: The CMA reworked the analysis and produced more concerning results
  • The extremely detailed assessment of rival office capacities at a very local level, including the cross-checking of the parties’ figures with third parties
  • The disregarding of two office closures that took place before the merger and that would have created overlaps between the parties
  • The weight put on evidence of specific examples of local entry by rivals rather than on general ‘low barriers to entry’ arguments

Muller/Dairy Crest dairy operations – Phase 1 undertakings in lieu of reference to Phase 2

The CMA found competition concerns only in the supply of fresh liquid milk to national multiple retailers in the catchment area of Dairy Crest’s Severnside dairy, especially in the South West and Wales. Undertakings in lieu of a Phase 2 investigation were offered and accepted.

Particular points of interest are:

  • This is the first time that the new agency has accepted at Phase 1 arguments to the effect that assets would inevitably exit the market in the absence of the merger. (This was important because it enabled the CMA to conclude that, in certain products and geographic areas, the merger itself would not decrease competition compared to what it would otherwise be). In this case the CMA accepted the parties’ arguments that Dairy Crest would ‘downsize’ to a single dairy (Severnside) if the merger did not go ahead.
  • The CMA did not, however, accept the parties’ arguments that Dairy Crest would inevitably exit the supply of fresh milk to national multiple retailers if the deal did not proceed. This was largely because there was no mention of this in internal documents and because spare capacity at the plant would give both the ability and incentive to bid for contracts.
  • The CMA also rejected the parties’ arguments that milk supply is an ‘ideal bidding market’ in which strong competition can be achieved with few companies. The CMA concluded that none of the conditions required for such an outcome would be fulfilled. Neither did it accept that tenders follow an ascending (second price) auction model, as the parties claimed.
  • The nature and complexity of the remedies package (which is based around a toll agreement for processing at Severnside, lasting for up to 8 years) brings out how different the Phase 1 remedy  process can be under the CMA compared to Phase 1 under the OFT. The published decision on remedies itself runs to 45 pages. (One factor here is that the CMA has a greater ability as a single agency to decide on how to allocate resources as between the two phases of merger investigation than was the case when the two phases were undertaken by separate organisations. This gives greater scope for deciding that remedies are sufficiently clear-cut to avoid a Phase 2 investigation).

Poundland/99p Stores – Phase 2 clearance

At Phase 1 the CMA found potential concerns about the effect of the merger on competition in 92 local areas on the basis of a fairly standard retail merger assessment.

The CMA was highly critical of aspects of the parties’ online survey (as well as other aspects of their evidence such as their price-concentration and entry analysis) and therefore used cautious criteria to identify the local areas of concern in its Phase 1 assessment.

At Phase 2 the CMA commissioned its own survey covering a sample of 15 local areas. The results were used to construct a method that could be used to calculate so-called ‘Indicative Price Rises’ across all the overlap areas based on features such as the number and type of competitors and their proximity to one another.

An appendix to the Phase 2 report compares the results of the Phase 2 face-to-face survey with the Phase 1 online survey. It is a useful reminder of how much survey design can affect results.

Notwithstanding the price rise analysis, the CMA’s Phase 2 panel concluded, however, that the parties would not be likely to flex terms and conditions locally to take advantage of their stronger position in certain locations. This was based on evaluating the practicalities involved and the costs and benefits of changing certain aspects of its local offering.

The survey and profitability margin figures suggest that there could be strong incentives for the parties to close outlets in some areas where they both operate. The CMA concluded, however, that consumers would be unlikely to be harmed by any such closures because the parties have similar offerings and are located close to one another in the potential areas of concern. On this analysis customers would not therefore need to travel much further where they have to switch to the other outlet.

Despite a high level of interest in the case there were no third party submissions challenging the CMA to develop the reasoning published in its provisional Phase 2 findings. Similarly the provisional clearance decision meant that the parties themselves did not need to challenge further certain parts of the analysis. As a result the final report leaves open interesting questions that may need exploring in future retail cases.

160229-Phase 2 case summ slide

Reckitt/K-Y brand – Phase 2 licensing remedy

The CMA found harm to competition in the supply of personal lubricants to grocery retailers and to pharmacy chains.

There are many points of interest from both the Phase 1 and Phase 2 analysis, including:

  • The importance of ‘indicative price rise’ (IPR) analysis to the Phase 2 assessment, drawing on the results of a large consumer survey.
  • Also on this: many debates between the parties and the CMA on methodology and interpretation, including about the link between wholesale and retail prices
  • The CMA set out an approach to identifying so-called ‘marginal’ customers – those most likely to switch as a result of a price rise
  • Phase 2 analyses of competition by examining the effects of previous price changes and of price promotions
  • Many comments in Phase 1 on the parties’ own survey work and on other elements of their evidence
  • Close analysis of the future of the K-Y brand in the UK in the absence of the merger (the so-called ‘counterfactual’)
  • An eight year licensing remedy to position new entry, judged to be preferable to other remedies, including brand divestment. The idea is that the licensee will take over the K-Y product in the UK and rebrand it during the eight year period.

Surrey hospitals merger – Phase 2 clearance

Royal Surrey County Hospital NHS Foundation Trust (RSC) and Ashford and St Peter’s Hospitals NHS Foundation Trust (ASP)  provide clinical services from their sites in Guildford, Ashford and Chertsey.

The clearance decision is significant because it is the first Phase 2 clearance of an NHS merger.

The case contains many developments of interest at Phase 2, including:

  • recognition of the importance of accurate treatment coding and the significant effect that it can have on the assessment for some treatments
  • taking into account the competition impact of developments at rival hospitals that are not captured in analysis of historic figures such as GP referral patterns
  • caution in the use of the results of a large patient survey in the light of the high proportion of patients who did not have a clear view on which alternative hospital they would choose if they had to switch
  • use of ‘closest hospital’ analysis to examine the proportion of a hospital’s patients for which other alternative hospitals would be closest.

At Phase 1, Monitor accepted the case that three treatment areas would give rise to so-called ‘Relevant Customer Benefits’ (though those were not sufficient to avoid a Phase 2 reference).

Tattersalls/Brightwells Phase 1 – No competition conclusions made. Deemed too small to merit a Phase 2 investigation

This case involved the merger of two bloodstock auctioneers. The CMA said that it could not rule out the possibility of competition concerns (set out below) but did not find it necessary to conclude on these because the concerns would be too small to justify a Phase 2 investigation

To qualify for consideration as a so-called ‘de minimis’ case the competition problems identified must be of a type that cannot in principle be remedied (otherwise the possibility of reference to Phase 2 would not arise anyway). As the CMA noted in this instance:

“The CMA’s concerns regarding the supply of bloodstock auctioneering services for low-value flat racing horses in training in the UK and Ireland may in principle have been addressed by the divestment of the Ascot lease. However, the CMA found that the competition concerns that the Merger raises in terms of elimination of Brightwells as a potential competitor in the supply of auctioneering services for store horses do not led (sic) themselves, in principle, to being addressed through UiLs in the specific circumstances of this case”.

Clearly the range of such problems left open can differ from the range of problems judged to raise competition concerns if the analysis is completed and conclusions are drawn – for example where the former include competition problems that cannot in principle be remedied and the latter include only problems that can.

Could leaving open the competition conclusions in a case therefore itself affect whether a case qualifies as too small to justify a Phase 2 investigation? In this case, for example, if the CMA had completed its Phase 1 assessment and decided that the only competition concerns related to the Ascot lease it would presumably have sought a divestment in lieu of a reference to Phase 2 and would not have permitted a de minimis outcome.

Other interesting aspects of this particular case include:

  • Internal documents said to show a valuation premium being paid for the elimination of competition, high barriers to entry for new competitors and plans to compete in new areas (so-called ‘potential competition’)
  • A different product/service categorisation to that used in a previous decision in the same sector ( a good example of how parties should not place too much weight on previous decisions)
  • Analysis showing how comparisons of average prices charged can give a misleading picture of how closely two companies compete.

Sonoco/Weidenhammer – Phase 2 clearance

Sonoco and Weidenhammer both produce ‘composite cans’ for packaging both food and non-food products, with a very high UK share of supply.

Points of interest include the importance to the clearance decision of:

  • the ability of customers to switch to alternative forms of packaging or to move to self-supply
  • new suppliers being likely to enter the market if prices increased (or quality decreased), potentially sponsored by larger customers looking for alternative suppliers
  • the resulting additional volumes being sufficient to protect the interests of customers not willing or able to sponsor entry.

None of these seemed particularly promising arguments on the basis of the Phase 1 assessment.

InterCity Railways/InterCity East Coast Rail Franchise – Behavioural undertakings in lieu of reference to Phase 2

The CMA found no significant competition concerns on most routes where East Coast services overlap with existing Stagecoach or Virgin Trains rail or coach services. They found, however, that the franchise award could mean higher fares or reduced service quality for rail passengers travelling between Peterborough, Grantham and Lincoln and for coach and rail passengers travelling between Edinburgh, Dundee and Aberdeen.

Points of interest include:

  • Analysis of the way that government support increases the parties’ incentives to increase price or reduce quality
  • The framework used to assess incentives affected by the balance between dedicated fares and inter-available fares
  • Rejection of the argument that the small increment on a flow is sufficient reason to conclude that competition concerns cannot arise
  • The range of remedies accepted: including price cap, separation of decision-making and price monitoring.

Greene King/Spirit  – 16 divestments in lieu of reference to Phase 2

In its first review of a merger between major pub operators, the CMA has adopted a long overdue fresh approach to the way transactions in this sector are assessed.

The many points of interest include:

  • The use of an internet survey of  certain customers of 40 of the parties’  pubs to help inform how to assess the catchment area for identifying overlaps. (In previous cases administrative areas for licensing had been used)
  • A distinction between food-oriented pubs and so-called wet-led pubs
  • A 35% combined share of pubs in a catchment area was deemed to raise possible competition concerns (56 areas in all)
  • Further criteria applied included:
    • A ‘discount’ factor to give some weight to the constraint of wet-led pubs on so-called ‘dry-led’ pubs (30 areas)
    • Location and proximity of pubs (2 areas)
    • Flexing drive time-assumptions (4 areas)
    • Price pressure analysis (2 areas)
    • Comparison of menus and Trip Adviser ratings ! (2 areas)

The big question is how soundly-based this new approach is as there is very little commentary in the published decision on the internet survey that underlies it and no significant reference to the sensitivity of results to changes in the main variables, including the ‘discount’ factor.

These factors also make it difficult to tell how cautious (or not) the assessment was for a Phase 1 decision.

The Original Bowling Company/Bowlplex – 6 divestments in lieu of reference to Phase 2

The decision packs a lot in to its 29 pages. Analytical points of note include:

  • CMA concerns with both the sample and questionnaire design for the parties’ telephone survey results
  • Statistical analysis to examine the impact of entry and exit by rival bowling operators and by cinemas
  • Much of interest on so-called ‘catchment areas, including the differences between the analysis produced using the CMA’s software and that used by the parties
  • The use of price pressure analysis (so called ‘GUPPI’ analysis) to help identify areas of most concern and the rejection of the parties’ arguments against the validity of this approach
  • No mention of any potential for the merger to reduce competition by removing the opportunity for the parties to enter new areas to compete with the other (so-called ‘potential competition’).

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My training seminar ‘The 17 UK Merger Cases Most Worth Knowing About’ looks at that select band of cases that have most influenced how UK mergers are assessed. Details available on request.

 

 

The CMA’s first year – Mergers


On March 31st Competition and Markets Authority (CMA) completed its first year. In those 12 months the new agency took 84 Phase 1 and 3 Phase 2 merger decisions.

This article summarises some of the main points of interest. These focus on the pattern of decisions and the analysis underlying them (as opposed to how the changes to the merger control process have worked – which merits an article in its own right).

  1. Case numbers recover

As the graph below shows, Phase 1 case numbers were nearly back up to the annual average under the Enterprise Act, the highest number of cases since 2007/08.

This was despite a sharp reduction in the number of non-notified mergers that the CMA ‘called in’ for investigation –  one reason why the proportion of cases found not to meet the qualifying tests for jurisdiction was well below average (as also shown in the graph).

Is the CMA being more selective than its predecessor, particularly when it comes to smaller transactions (see also point 4)? Or were there simply fewer problematic non-notified deals among the 600-or-so transactions screened by the agency’s Mergers Intelligence team during the year?

Phase 1 Merger Control: 2014/2015

(Please click on the graph to enlarge it)

 150331-Phase 1 stats

There were only three Phase 2 decisions made during the year, the second lowest number in any year under the Enterprise Act and well below the average. This reflects in part the dearth of references to Phase 2 in the CMA’s first six months –  described in my earlier article – together with only two references being made in the OFT’s final six months.

  1. The 80/20 rule rides again

Around 80% of Phase 1 cases were cleared. Nearly 20% were found to give a reasonable prospect of in a substantial lessening of competition. This proportion is very much in line with the average level under the CMA’s predecessor Phase 1 body, the Office of Fair Trading.

  1. No take-off in remedy numbers

As can be seen from the graph there is little sign so far that the CMA’s new arrangements for remedying competition problems at Phase 1 have resulted in significantly more remedies being proposed and accepted, the main objective of the change.

Of this year’s three Phase 2 decisions, one (Breedon Aggregates/Aggregate Industries) involved a divestment remedy and a price cap remedy where divestment was not possible.

  1. Small is beautiful

By contrast more SLC decisions than usual were deemed too small (so called ‘de minimis’ cases) to justify the costs of a Phase 2 enquiry, including one (WGSN/Stylesight) involving a market of over £6m – the largest so far since the de minimis policy was introduced.

In addition to these, four cases were cleared on de minimis grounds without a final decision being taken on their competition merits (Eden/Riders, Vitec/Autocue, Phonak Comfort/Audio and Key Publishing/Kelsey). This is not entirely new but has not happened on this scale before. Is it an approach that will be expanded further?

De minimis arguments were rejected in only two cases: Reckitt/K-Y and InterCity Railways/Intercity East Coast Rail Franchise. In the former, the CMA worried about the fact that similar deals might happen (so-called ‘replicability’) – a contrast to the ‘wait and see’ approach in some other cases.

Overall, the CMA seems to be taking a more expansive approach to de minimis policy. As the new agency has to demonstrate benefits to consumers that are at least ten times its costs (previously it was five times costs) it would not be surprising if the balance of its case portfolio (within mergers and beyond) was to shift.

  1. Horizontally-challenged

Horizontal ‘theories of harm’ remained the overwhelming focus for the CMA’s analysis as usual. However 23 cases also involved so-called ‘vertical theories’. Once again coordinated effects were out of fashion, featuring in only one Phase 1 case (Ballyclare/LHD).

  1. Exit closed. Please try an alternative route.

As usual, exiting asset/failing firm arguments cut little ice with the CMA at Phase 1 – rejected in all 11 cases in which they were put forward (one of the most interesting being Roanza/Enza).

At Phase 2, however, these arguments played a key part in the clearance of the Alliance Medical/IBA deal , despite representations by one of the party’s competitors that they would have bought or supported the target business in the absence of the merger.

  1. Feeling the pressure

‘Upward price pressure’ measures combining ‘diversion’ and financial margin data turned up in only one Phase 1 case (Asda/Coop) this year. This somewhat understates the importance of the price pressure approach, however, as measures of diversion carried weight in numerous cases (see number 12 below) and financial margins continued to be examined, even though (somewhat puzzlingly) that analysis is not always evident in the CMA’s published decisions.

  1. Signs of entry

While entry arguments were often made by parties and (as usual) were mostly rejected or superfluous, there were nevertheless three Phase 1 examples where the CMA gave weight to timely, likely and sufficient entry by rivals (Ballyclare/LHD, Care Monitoring and Management/Pantzel and Coopervision/Sauflon Pharmaceuticals).

In addition the potential for innovation to enhance competition was given a lot of weight in Cirrus Logic/Wolfson.

Rival entry was also said to meet the ‘timely, likely and sufficient’ criteria in the Phase 2 Omnicell/Surgichem clearance decision.

  1. A rare sighting

Countervailing buyer power arguments appear to have played a part in just one Phase 1 case (Herstal/Manroy), though the summary of the decision gives more weight to this than the main text of the decision.

  1. No smoke without smoking guns

Third party views, internal documents and bidding/tendering data (in that order) were particularly important sources of evidence, with problematic internal documents cited especially frequently in the Phase 1 SLC decisions (a notable example being Pure Gym/The Gym).

However…as every year, seemingly hottish documents do not always mean SLC – witness the Multipackaging Solutions/Presentation products case.

On evidence more generally it is worth noting that the CMA used its new information-gathering powers on 23 occasions at Phase 1, applied to third parties as well as to merging parties themselves.

  1. Competitor concerns do matter

Interestingly the Phase 1 SLC decisions strongly tended to feature complaints from both customers and competitors (as compared to the clearance decisions).

Once more the simple and often-heard ‘conventional wisdom’  that competitor complaints tend to encourage agencies to clear mergers turns out to be pretty wide of the mark.

  1. Best bids

One quarter of all Phase 1 cases involved the use of data on the bids and tenders that the parties had been involved in, primarily to examine the degree of diversion of business between the parties and others.

Particularly interesting cases include: Sonoco/Weidenhammer, Ballyclare/LHD, Multipackaging Solutions/Presentation Products, and Xchanging/Agencyport.

Two points stand out:

  • One – bidding analysis is not as straightforward as it may seem.
  • Two – the results (and the reading of past cases involving this type of analysis) need careful interpretation.

To sum up

In summary, while case numbers recovered, there were few if any that offered great potential for a major policy change. Forthcoming decisions look much more interesting in that regard!

Arguably the main questions raised are:

  • whether there will be a  greater use of Phase 1 remedies in future
  • where de minimis policy is heading and
  • whether the CMA is becoming more selective about the non-notified deals it calls in for investigation.

As usual, however, there have been many interesting lessons for parties about to merge in terms of how to assess their merger and the approach the CMA will adopt.

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Links to cases referred to above can be found on the CMA’s web pages .

 

CMA merger decisions : another bunch of fives

150119-bunch of fivesJust when some companies thought it was becoming safer to merge the Competition and Markets Authority has found competition problems with five mergers …..

..  in just six weeks

(These relate to Phase 1 merger cases requiring further Phase 2 investigation, or undertakings to resolve the problems, for which decisions were announced between December 1st 2014 and January 15th 2015)

This after the CMA identified just four problematic deals at Phase 1 during the whole of 2014 up to the beginning of December (excluding cases deemed too small to justify a Phase 2 investigation).

What should companies currently contemplating difficult deals make of this recent bunch of five?

As always with short sequences of merger decisions it is vital to take a long view and to avoid the temptation to read too much into too few decisions.

So what does the long view look like?

The history of Phase 1 decisions under the 10+ years of the Enterprise Act helps put things in perspective.

In actual fact the UK merger authorities have delivered several speedy bunches of five over the years….2006, 2011 and 2012 each contained six-week periods in which five mergers were found to raise competition concerns at Phase 1.

And those episodes are by no means the record.

In early 2005 there was a similar period when seven deals fell foul of the then-OFT’s decision-makers. And later that same year eight deals were found to be problems in just over a month.

What is more, this number of five-plus/six-week bunches over the years is more or less exactly what one would expect given the average number of cases each year and the average probability of a case giving rise to an adverse competition finding.

And, not to forget that the latest Christmas/New Year decision-making flurry followed an influx of new cases in October that numbered well above average. Perfect timing for a bumper seasonal delivery of merger decisions.

So while it is true that a bunch of fives from the UK’s merger authorities hasn’t happened that often, it is also the case that it has not been that unusual either.

No need for companies to worry unduly yet about the latest bunch of fives.

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© Adrian Payne 2015

 

 

 

2014 in Numbers : An Overview of UK Merger Control

150101-Number picture0  – The number of new merger prohibition decisions

1  – The number of appeals to the Competition Appeals Tribunal

3  – The number of Phase 2 decisions – all clearances

4  – The number of Phase 1 cases that investigated coordination between firms

5   –  The number of rail franchise cases examined

  –  The percentage of cases in which merger efficiencies or customer benefits were examined in some detail

13  –  The number of cases opened in August, the peak month of the year for new cases

16  –  The percentage of cases found not to qualify for investigation under the tests for jurisdiction

18  – The percentage of qualifying cases found to result in a substantial lessening of competition at Phase 1

19  – The percentage of cases in which parties argued that one of the businesses involved would exit if the merger did not proceed

20  – The percentage of cases qualifying for investigation under the turnover test

21  – The number of Phase 1 cases involving ‘vertical’ theories of harm

33 – The number of opened Phase 1 cases being investigated at the peak month-end of the year – October

45  – The percentage of cases involving completed deals

50  – The percentage of cases found to harm competition that were referred for Phase 2 investigation

53  – The percentage of cases in which one or more competitors to the merging parties expressed concerns about the deal

54  – The percentage of cases that investigated more than one theory of harm to competition

59 – The percentage of cases in which one or more customers of the parties expressed concerns about the deal

60  – The smallest share of supply for the parties to those deals found to harm competition

78  – The number of pages in the longest Phase 1 decision

82  –  The number of Phase 1 decisions announced

90  – The highest percentage share of supply of one of the parties to a merger that was cleared at Phase 1

6,500,000  – The size (in pounds) of the largest market deemed too small to justify a Phase 2 investigation (under the de minimis criteria)

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Note: Numbers refer to those OFT, CC and CMA cases for which the decisions were announced during 2014 and for which relevant details were published as at 31/12/14.

© Adrian Payne 2015

 

 

Mergers at the CMA: What’s Up?

The Competition and Markets Authority completed its first six months of cases at the end of September.

Since mid-August it has been in the unusual position (as compared with its predecessor, the Competition Commission) of having no Phase 2 merger cases to consider.

As one FD put it to me last week: “What’s up at the CMA? –  I thought there has been a merger boom going on”

Well, actually, in the UK there hasn’t !…………. (as the latest official statistics show).

There are in fact several different elements to the answer, as the following picture shows.

Figure 1: UK Mergers: April 1st to September 30th 2014

141006-merger-funnel

On the face of it some of these figures appear very striking.

No wonder some competition practitioners are already talking of a significant change of approach by the CMA, compared to its predecessor agencies.

Indeed change would not be at all surprising because:

  1. New timetables and procedures are revising what is possible at Phase 1 (including pre-notification) in some cases.
  2. Putting Phase 1 and Phase 2 into a single organisation gives incentives to optimise resources across the two phases that did not exist when the OFT and Competition Commission were separate agencies.

But, not so fast….

….whatever changes do eventually emerge, there is a real danger of drawing premature conclusions.

Six months of case data is far too short a period from which to infer changes in underlying trends. And bear in mind that the number of cases involved at the lower end of the funnel is small.

Looking at the individual cases involved and comparing them with previous years, it is just as likely that the six month figures reflect the mix of cases in terms of sector, size and the pattern of competition issues raised.

With this in mind it is worth remembering that many of the parameters in the ‘funnel’ shown above can and do vary widely from year to year.

To take just one example: the following chart shows how the proportion of qualified cases (i.e. those that have met the jurisdictional criteria) found to raise competition problems at Phase 1 has varied since the Enterprise Act came into force. The latest year’s figure is in fact not much lower than for six of the previous ten years.

Figure 2: Phase 1 ‘Substantial Lessening of Competition’ findings as a proportion of qualified merger cases

141003-SLC per cent

I’ll be returning to this subject in a future article so do drop me a line if you have thoughts.

In the meantime, with eleven Phase 1 decisions due for announcement over the next six weeks, the picture could change rapidly.

Then again…..

 

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Click here for the latest UK merger control statistics.

My article on the one CMA merger reference so far is here.

My ‘A-Z of 2014 UK Merger Analysis’ presentations are taking place in January. Please get in touch if you are interested in arranging one for your firm.

 

Fit for merger?

The CM140921-gymA’s long-awaited lengthy merger decision on the Pure Gym/The Gym deal has finally been published, nearly two and a half months after the decision was announced to refer it for Phase 2 investigation.

Although the deal was abandoned soon after the reference decision was made, the decision itself is one of the most interesting decisions of the year.

In terms of some of the issues raised, it reminds me very much of the OFT’s Rank/Gala casinos decision almost exactly two years ago.

It should give plenty of food for thought to merging parties in similar types of business on matters such as:

  • how important national parameters of competition can be, even when services are provided through local outlets
  • the importance of realistically assessing which types of outlet compete most strongly and how – not all gyms are created equal, it appears
  • why 80% customer catchment areas are not always the whole story in thinking about the geographic scope of competition
  • how internal documents need to provide sufficient support to the narrative parties put forward
  • why potential competition between parties (i.e. in opening new outlets near the other party) can be every bit as important as existing overlaps, especially where there is only a small number of national players
  • the role of entry analysis and customer switching analysis when competition is as much about fighting for new customers as it is about retaining existing customers and when tariff structures complicate incentives
  • what can happen when the CMA believes it may not have received all the information that is available
  • why website material can become an important source of evidence that needs to be managed well
  • the importance the CMA can attach to being able to replicate or extend results of analysis that the parties present.

Throughout the decision the CMA makes repeated reference to the commentary on retail mergers, published jointly by the former OFT and CC .

It is well worth reading and fully considering the points made in the commentary if you are contemplating a retail merger (even though I would say that having had a close hand in developing the retail commentary!).

The commentary can be found here and the decision itself is here.

 

Recent UK merger control: from soft drinks to hard cheese

UK merger control over the past year – and looking ahead

On April 1st the Competition and Markets Authority (CMA) took over UK merger control responsibilities from the Office of Fair Trading and Competition Commission.

In this article I

  • take a high-level look at trends in UK Phase 1 and Phase 2 merger cases in the final year leading up to the new CMA
  • note some developments in assessment methods
  • set out in brief a few of the lessons that future merging parties may want to consider from the past year’s cases – and
  • look ahead to how the changes in the regime might affect future analysis.

Phase 1

The following chart compares the year to the end of March 2014 with the average across all cases in previous years under the Enterprise Act.

The figures focus on those cases that the OFT decided to qualify for assessment under the jurisdictional tests – hence the term ‘qualified cases’.

140508-Oft-stats-13-14

The key points are as follows:

  • Case numbers have been significantly down on previous years
  • The proportion of ‘substantial lessening of competition’ (SLC) findings was in line with previous years
  • No undertakings-in-lieu of reference were accepted, the first time this has happened (though with one remedy still outstanding)
  • Use of the de minimis discretion was in line with past averages
  • There has been much greater use of initial ‘hold separate’ undertakings, something that looks set to continue under the CMA.

The signs are that the low case numbers have continued (though activity seems now to be increasing):

  • Only 19 Phase 1 decisions up to May 1st this year

…. 50% down on the same point last year.

This should come as no surprise. Merger decisions occur with a time-lag and….

  • There were just 99 domestic and cross border transactions involving UK companies (excluding outward disposals) in the final quarter of 2013…

… the lowest number since quarterly figures were first collected in 1987.

  • For 2013 as a whole such deals were down 50% on 2011 (450, compared to 965).

As in previous years, the number of competitors and low increment to share of supply have been the most important factors in clearance decisions. Buyer power and entry arguments were important, however, in a small number of cases.

Phase 2

Of the references to Phase 2 made in the year up to 31st March to date there have been

  • 4 clearances (including a dissenting opinion in one case)
  • 2 SLC decisions involving remedies – one of them a price cap remedy (a pretty rare animal in the UK these days!)
  • and 2 other decisions are awaited.

Assessment methods – some points of interest

Before looking at some of the lessons for future merging parties I note here a few of the points of interest across the year in terms of the analytical approaches and techniques used by the merger authorities. These include:

  • A customer survey containing both a price rise question and a store closure question, enabling direct comparison of results as to how customers respond to each. This is often a bone of contention in cases where only the store closure question is asked and it is assumed that the answers carry across to consumer behaviour in response to price changes. There is only a handful of UK cases in which both questions have been asked.
  • Use of ‘uplifts’ to create ‘extended’ catchment areas, much larger than the often-used ‘80%’ catchment areas. These extended catchments can increase the number of overlaps between parties but, at the same time, can bring additional competitors into the analysis
  • Use of concentration ‘hotspot analysis’ to pick up concerns relating to particular areas/groups of customers within a catchment
  • Development of GP referral analysis methods, including analysis focused on the GPs most likely to switch referral hospitals.

More generally, there has been relatively little use of price pressure analyses this year and merger simulation has been rarely used.

By contrast, many cases have involved the use of ‘catchment area’ analysis and  analysis of internal documents has been important to a number of decisions.

It is worth noting that the new (much-enlarged) CMA notification form for Phase 1 has expanded the set of internal documents that are requested upfront.

Lessons for future merging parties

Within the scope of this article it is only possible to give a brief overview but below I set out some of the lessons for future merging parties drawn from published material on  Phase 1 and Phase 2 cases over the past year.

Many of the lessons have implications for pre-merger planning, both in terms of:

  1. assessing the risk of a deal being referred to Phase 2 and
  2. planning ahead so that the strongest case can be put within the Phase 1 timetable (which is changing under the CMA).

Here are some of the most notable points arising from the 2013/14 cases:

  • Be aware of the dangers of over-estimating rivals’ shares of supply – but try not to underestimate them either, as happened in one case.

– Large discrepancies between the parties’ figures and those obtained by the authorities in their enquiries of customers and competitors can undermine confidence in other material the parties put forward

  • Remember that the set of companies judged to be competitors can differ from case to case, even in sectors that have been examined previously….and many times over.

– This is important in pre-merger planning, in assessing the risks of a merger being referred to Phase 2 and the risk of it being found to be problematic at Phase 2.

  • Bidding data and data on sales won and lost were used across a large number of cases, more frequently than in previous years (though this may be due to the mix of cases rather than an underlying shift in approach).

– Bid data can be time-consuming to assemble so that it is sufficiently comprehensive. Early planning and gathering of material is therefore important.

  • Bear in mind capacity constraints that rivals may have, an important consideration in one of the 2013 references

– It is particularly important to distinguish between ‘theoretical capacity’ (which may be very large but may be costly to deploy in full) and that capacity that it may be realistic and economic to bring on stream.

  • Modelling of the merger impact on comparative tendering costs among rivals can be very powerful, as one clearance case this year showed.

– In some markets the key constraint on prices is the bidder who comes second. The key question is therefore what the merger does – if anything – to that player’s bid.

  • Once again this year, several cases have shown how important it is for parties to engage with the competition authorities if they are planning their own consumer survey work.

– This will become even more important looking ahead given the new merger timetables.

  • Ensure that in comparing branded and private label products – and the extent to which they compete – that the effect of price promotions is properly considered.

– For example, how close might be the price of branded goods that are heavily promoted to the price of private label products that are not?

  • Past failures can be very helpful !… especially if they relate to past attempts by one of the merging parties to enter a market against the other party.

– This helped dampen concerns about the potential for the parties to compete in one case this year.

  • Though on average they raise the probability of a case being seen to be problematic, customer complaints are not of themselves a good predictor of the outcome of a case

– For example, one notable case was cleared this year despite most customers complaining about it. Equally, many cases have been referred to Phase 2 in previous years without there being significant levels of complaint.

  • They may be rare, but successful efficiency arguments are possible when there are real synergies, backed with the right analysis

– as shown in a ‘3 to 2’ merger where plant location and logistics opened up new opportunities for the merged firm to reduce its costs – opportunities that would not otherwise have been possible.

  • Post-merger price increases – projected or actual (in the case of completed mergers) – often cause difficulties but sometimes evidence can be successfully put forward to justify even very large post-merger price increases

– as happened in one completed merger case this year – in which the increases were judged to be investments in quality

  • There appears to be continuing development in the use of ‘de minimis’ policy (i.e. policy that avoids referring to Phase 2 cases that raise significant competition concerns but are thought to be too small to merit further investigation)

– especially in exercising the discretion not to refer cases to Phase 2 in sectors in which similar deals are possible (perhaps even likely) in other local areas.

Looking ahead

Although much will stay the same, the arrival of the CMA brings a number of changes to UK merger control the effects of which will not be clear for some time.

The main changes being made include:

  • New hold-separate powers
  • Much more extensive Phase 1 notification forms
  • The new 40-day statutory timetable for Phase 1 mergers
  • New information-gathering powers
  • Some overlap between the Phase 1 and Phase 2 case teams
  • A new remedies process at Phase 1
  • Access to the Phase 1 decision-maker for merger parties

For the area that I am most often involved in – merger evidence-gathering and analysis – there are many questions that the next year will start to answer, including the following:

  • What will happen to the overall Phase 1 timetable given the need for more pre-notification discussions?
  • To what extent will the changes delay third party enquiries in terms of their place within the overall process? And what effect will any delay have on the risk of new questions emerging late on and the number of cases going to Phase 2?
  • What in turn will the implications be of any change in these areas for the quality of analysis and for decision-making thresholds?
  • To what extent will the new information-gathering powers blur the distinction between Phase 1 and Phase 2 and affect the decision-making thresholds?

And that is to say nothing of the more process-based questions on matters such as ‘stopping the clock’ and remedies where the devil really will be in the detail.

It may take a considerable time for the implications of the changes to become clear, particularly any unintended consequences.

Case circumstances vary considerably so that making judgements on what the changes may mean over, say, the first 10 cases – or even the first 20 – could prove as unreliable as making judgements on SLC trends from a similarly short run of cases (a topic I hope to return to in a future article).

Much more on all this in future merger workshops….

 

© Adrian Payne 2014