Fenwick& West antitrust and unfair competition chair Mark Ostrau was quoted at length in a Law360 article regarding the Federal Trade Commission’s requests for more information from the Ball Corporation about its $7.8 billion bid for rival Rexam PLC. The proposed deal would leave only two major independent aluminum can providers, and Ball with almost 60 percent of the aluminum can market in the U.S., according to Law360.
Ostrau told Law360, "The numbers here could be comparable to those found in Ardagh’s proposed acquisition of Saint-Gobain Containers, which resulted in a consent order in 2013. In both cases you had consolidation of two of the three leading firms who commanded a major share of the market. On the other hand, in Ardagh the three accounted for 77 to 85 percent, whereas the three-firm concentration in this deal is reportedly around 60 percent."
One factor the FTC will consider, according to Law360, will be the ability of the companies’ customers to produce their own cans, which would keep pricing down.
Said Ostrau, "Some of the key areas of investigation likely will be whether the major customers can ramp up internal production sufficiently to counter any effects of the combination, and even if that’s the case, whether there’s a separate set of customers who can’t engage in self-help and would suffer.”
He added that it’s not unusual for the FTC to look closely into merger deals in the container and packaging industries.
"The FTC has been especially vigilant over the years with respect to container and packaging industries, which have had a history of consolidation and entry barriers," Ostrau said. "So while it’s too soon to tell what the outcome will be, it would have been more surprising if the FTC did not issue a second request here."
The full article is available on the Law360 website (subscription required).