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For over two hours on May 31, attorneys for Colorado state attorney general Phil Weiser, pitted against attorneys for Albertsons, Kroger and proposed divestiture buyer C&S, argued over the admissibility of certain evidence regarding the grocery stores’ improved divestiture package to C&S. The attorney general’s team wanted to disallow evidence of the divestiture to be considered at an upcoming trial on the matter. Judge Andrew Luxen denied their “motion in limine”. A motion in limine is a pretrial motion seeking the exclusion of specific evidence or arguments from being presented in trial. It is decided on by the judge outside of the presence of the jury. For full coverage of the Albertsons/Kroger merger and the FTC and state challenges visit ctfn.news #mergers Diane Alter

#mergers #cfius Diane Alter #specialsituations Vista Outdoor on May 28 rejected the unsolicited indication of interest from MNC Capital and entered into an amended agreement with Czechoslovak Group (CSG). The amended agreement, among other things, increases the base purchase price payable by CSG for Vista’s Kinetic Group business by $50 million from $1.91 billion to $1.96 billion and increases the cash consideration payable to Vista stockholders by $3.10 per share of Vista common stock from $12.90 to $16.00 in cash, a 24% increase. Based on the amended merger agreement with CSG, Vista stockholders will receive one share of common stock of Revelyst and $16.00 in cash, in each case, per share of Vista common stock. The $50 million increase is $0.83 per share — nothing more than a PR play, according to a person familiar with the matter. The slumping stock reaction to the news made it clear shareholders do not want this deal or a slimmed-down company, the person familiar continued. (Note the shares have since recovered.) And the pushed-out timeline — from the first half of 2024 to 2024 — suggests that CFIUS approval is not imminent, the person said. MNC’s offer remains on the table, according to the person familiar. MNC has been in conversations with Vista but has not been given enough information to improve its current bid of $37.50. The shareholder vote, initially scheduled for May 16, is now set for June 14.

Members of a community review board in Oregon said yesterday that they unanimously oppose Kroger’s acquisition of Albertsons. The board will hold an official vote on June 13, and the board’s decision could add yet another legal challenge to the Albertsons/Kroger merger. Board members said public comments in Oregon were overwhelmingly against the merger. Kroger, Albertsons and C&S failed to explain how the transaction would improve or expand pharmacy services, according to various board members. Although the community review board is focused on pharmacy issues, representatives for the companies seemed to focus only on grocery-related concerns, board members said. Assuming that board members vote against the merger, this will be the first time that Oregon health regulators challenge a transaction. CTFN would note that the community review board's interactions with Kroger, Albertsons and C&S may provide a template for other companies that face similar reviews in the future. #mergers #healthcare #oregon $ACI $KR Ryan Lynch

On May 23, the US Department of Justice and 30 state and district attorneys general filed a civil antitrust lawsuit against Live Nation Entertainment and its wholly owned subsidiary, Ticketmaster, for monopolization and other unlawful conduct that thwarts competition in markets across the live-entertainment industry. The lawsuit, which includes a request for structural relief, seeks to restore competition in the live-concert industry, provide better choices at lower prices for fans, and open venue doors for working musicians and other performance artists. The DOJ is seeking, as structural relief, a breakup of the company. “That is the only thing that makes sense,” a former DOJ official told CTFN. “They already have behavioral relief.” This lawsuit is a long time coming, the former official said, noting that this effort at enforcement began with Christine Varney, who served as assistant attorney general of the DOJ’s Antitrust Division during the Obama administration. One important outstanding detail is who will be the overseeing judge. This could be announced as soon as today. https://lnkd.in/g3nqY-DM To learn more about CTFN's reporting visit ctfn.news #antitrust #corpgin Diane Alter

The first comment from Johnson Controls regarding Elliott Management’s investment of over $1 billion is expected today, May 21, when the company presents at the 17th Annual Wolfe Research Global Transportation & Industrials Conference in New York, CTFN reported citing a person familiar with the matter. Elliott is typically not a passive investor and may try to accelerate Johnson Controls’ strategic review of its portfolio. Elliott told CTFN it is not commenting at this time. CTFN previously reported that speculation around what Johnson Controls is looking to sell, and when, is premature. Further, Soroban Capital Partners has built a stake in Johnson Controls worth more than $500 million, making it one of the company’s top 20 shareholders, Bloomberg reported, citing people with knowledge of the matter. #corpfin #corpgov Diane Alter

On May 7, attorneys for Albertsons and Kroger argued back and forth for nearly two hours with attorneys representing Colorado attorney general Phil Weiser regarding the merging parties’ request for a motion to dismiss the state’s lawsuit against the grocery stores’ proposed merger. Denver Judicial District Court judge Andrew Luxen ended by saying he will take each side's arguments under advisement and decide later. That contrasts with the conclusion of last month’s motion to dismiss hearing in Washington state when judge Marshall Ferguson said he was denying the motion to dismiss “at this time”. Still, the merging parties clearly succeeded in planting a seed of doubt in Ferguson’s mind that he has the authority to issue a nationwide injunction to block the merger coast-to-coast. Kroger attorneys’ arguments on Tuesday were similar to the arguments they made in last month’s motion to dismiss hearing: Colorado does not have the authority to request an injunction to block a merger nationwide. Colorado, meanwhile, argued that the only way to block an unlawful merger is “full stop”. Kroger attorneys specifically cited Colorado’s claims that the merging parties have not pledged to divest enough distribution centers in Alaska and Texas, stating that it has nothing to do with Colorado. In rebuttal, Colorado said broad remedies are important and impactful to Colorado, and are particularly essential in supermarket mergers and divestitures. Questions around no-poach agreements — or, as Kroger claimed, information sharing around hiring — were also raised. Weiser, on February 14, announced a state lawsuit to block the merger between Kroger and Albertsons. Weiser has claimed the merger would eliminate head-to-head competition between the two companies and consolidate an already concentrated market, hurting Colorado shoppers, workers, farmers and suppliers. Further, the US Justice Department has endorsed Colorado’s attempt to block the proposed merger. $ACI $KR #mergers #antitrust Diane Alter

Lighthouse is the newest product from the team at CTFN. It consists of a weekday newsletter delivered before the US markets open with summaries of key news stories, filings and events in public company #M&A (with links to source docs), along with a weekly look ahead at the upcoming week (out every Sunday), with a deep dive into a single topic of interest for those in the #deal eco-system. Lighthouse also tracks prospective deals and provides this list to readers with regular updates. It highlights when pre-event names have been mentioned in the press, and provides a list of precedent deals and comparable companies. See more at ctfnlighthouse.com where readers can get a free month when they sign up. #mergers #corpfin #corpgov Graham Riss Photo credit: Richard Wiese

“Race discrimination at the Federal Communications Commission derailed an $8.6 billion deal for the purchase of TEGNA.” So began Soo Kim in Standard General’s 120-page suit filed Apr 24 against the FCC. “I believe that America is inherently fair and tries its best,” Kim told CTFN. “Where there are injustices, people must speak up, stand up to it, bring attention to it. It’s all we can do. I hope others will get fairer shots in the future. Me included! As for my efforts to acquire TEGNA, no one offered me any solutions.” The FCC made no secret about the role race plays in its decisions, according to the suit. “Race discrimination was unlawful then, and it must be condemned and compensated for now,” the suit continues. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Race is a factor in deciding whether to approve broadcast-license transfers, according to the suit. “The FCC tracks broadcast ownership by the race of broadcast owners. And a recent FCC report to Congress says that 'advancing equity is core to the agency’s management and policymaking processes'”. In the Standard General case, “advancing equity” meant killing the chance for a Korean-American to buy TEGNA’s 60 television stations because Byron Allen wanted them for his black-owned media company, according to the suit. As far as the FCC’s diversity policies are concerned, being Asian did not count. Kim’s race was used against him with pernicious stereotypes. “As for Mr. Allen, he never had a problem getting the FCC to quickly approve his license applications for his black-owned media company — the right kind of diversity, according to Mr. Allen. In the years leading up to the TEGNA deal, the FCC quickly approved multi-billion-dollar deals where Mr. Allen’s company would benefit by taking some stations. But Mr. Allen wasn’t getting any stations in the TEGNA deal.” Moreover, DISH’s Charlie Ergen wanted the TEGNA/Standard General deal “dead”, according to the suit. Kim’s suit has also alleged that as a result of the FCC’s unlawful conduct, Standard General wasted tens of millions of dollars in legal and advisory fees, had to pay TEGNA a break fee of $136 million, and lost billions of dollars in benefits that would have accrued had it completed the transaction. Standard General is asking for a jury trial, as well as declaration that the FCC, chair Jessica Rosenworcel, and Holly Saurer, former head of the agency’s Media Bureau, violated the equal protection guarantee of the Fifth Amendment in their handling of Standard General’s license-transfer applications because of Kim’s race. As for damages, Standard General is seeking an amount including but not limited to the $136 million breakup fee paid to TEGNA, as well as punitive damages to the fullest extent permitted by law, and any other relief the court deems just and proper. Diane Alter #mergers #FCC

The US Chamber of Commerce will file suit (targeting Wednesday, April 24) against the US Federal Trade Commission after the agency’s Tuesday vote finalizing a rule to ban employer non-compete agreements, Neil Bradley, chief policy officer, and Daryl Joseffer, chief counsel of the Chamber of Commerce Litigation Center, said during a media call on Monday. The FTC’s move is the agency’s first such measure in more than a century and is a precedent-setting matter, Bradley said. According to the Chamber of Commerce, the FTC is overstepping its bounds and lacks the authority to lift non-competes for all employers. Representing some 3 million businesses, the Chamber of Commerce called the proposed rule “blatantly unlawful”. Banning non-compete agreements is clearly an authority the FTC does not have and no one has ever thought that it had, Bradley said. The Chamber of Commerce will start in District Court, and its representatives said it is too soon to know if it will take its suit all the way to the Supreme Court. Most legal observers disagree with the agency’s premise that it can eliminate non-competes under Section 5 of the FTC Act, which bans unfair methods of competition, Bradley said. Diane Alter #antitrust