Getinge AB and Datascope Corp.; Analysis of Agreement Containing Consent Order to Aid Public Comment, 6155-6157 [E9-2376]
Download as PDF
<![CDATA[
Federal Register / Vol. 74, No. 23 / Thursday, February 5, 2009 / Notices
rwilkins on PROD1PC63 with NOTICES
time permits. It is EPA’s policy to
include all comments it receives in the
public docket without change and to
make the comments available online at
https://www.regulations.gov, including
any personal information provided,
unless a comment includes information
claimed to be confidential Business
Information (CBI) or other information
whose disclosure is restricted by statute.
Do not submit information that you
consider to be CBI or otherwise
protected through https://
www.regulations.gov or e-mail. The
https://www.regulations.gov Web site is
an ‘‘anonymous access’’ system, which
means EPA will not know your identity
or contact information unless you
provide it in the body of your comment.
If you send an e-mail comment directly
to EPA without going through https://
www.regulations.gov, your e-mail
address will be automatically captured
and included as part of the comment
that is placed in the public docket and
made available on the Internet. If you
submit an electronic comment, EPA
recommends that you include your
name and other contact information in
the body of your comment and with any
disk or CD–ROM you submit. If EPA
cannot read your comment due to
technical difficulties and cannot contact
you for clarification, EPA may not be
able to consider your comment.
Electronic files should avoid the use of
special characters, any form of
encryption, and be free of any defects or
viruses. For additional information
about EPA’s public docket visit the EPA
Docket Center homepage at https://
www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket
are listed in the https://
www.regulations.gov index. Although
listed in the index, some information is
not publicly available, e.g., CBI or other
information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
will be publicly available only in hard
copy. Publicly available docket
materials are available either
electronically in https://
www.regulations.gov or in hard copy at
the OEI Docket in the EPA Headquarters
Docket Center.
Dated: January 16, 2009.
Rebecca Clark,
Acting Director, National Center for
Environmental Assessment.
[FR Doc. E9–2466 Filed 2–4–09; 8:45 am]
BILLING CODE 6560–50–P
VerDate Nov<24>2008
16:34 Feb 04, 2009
Jkt 217001
FEDERAL RESERVE SYSTEM
Change in Bank Control Notices;
Acquisition of Shares of Bank or Bank
Holding Companies
The notificants listed below have
applied under the Change in Bank
Control Act (12 U.S.C. 1817(j)) and
§ 225.41 of the Board’s Regulation Y (12
CFR 225.41) to acquire a bank or bank
holding company. The factors that are
considered in acting on the notices are
set forth in paragraph 7 of the Act (12
U.S.C. 1817(j)(7)).
The notices are available for
immediate inspection at the Federal
Reserve Bank indicated. The notices
also will be available for inspection at
the office of the Board of Governors.
Interested persons may express their
views in writing to the Reserve Bank
indicated for that notice or to the offices
of the Board of Governors. Comments
must be received not later than February
20, 2009.
A. Federal Reserve Bank of Atlanta
(Steve Foley, Vice President) 1000
Peachtree Street, N.E., Atlanta, Georgia
30309:
1. Redemptus Group LLC, Atlanta,
Georgia, to acquire voting shares of
McIntosh Bancshares, Inc., and thereby
indirectly acquire voting shares of
McIntosh State Bank, both of Jackson,
Georgia.
Board of Governors of the Federal Reserve
System, February 2, 2009.
Robert deV. Frierson,
Deputy Secretary of the Board.
[FR Doc. E9–2459 Filed 2–4–09; 8:45 am]
6155
the Board of Governors. Interested
persons may express their views in
writing on the standards enumerated in
the BHC Act (12 U.S.C. 1842(c)). If the
proposal also involves the acquisition of
a nonbanking company, the review also
includes whether the acquisition of the
nonbanking company complies with the
standards in section 4 of the BHC Act
(12 U.S.C. 1843). Unless otherwise
noted, nonbanking activities will be
conducted throughout the United States.
Additional information on all bank
holding companies may be obtained
from the National Information Center
website at www.ffiec.gov/nic/.
Unless otherwise noted, comments
regarding each of these applications
must be received at the Reserve Bank
indicated or the offices of the Board of
Governors not later than March 2, 2009.
A. Federal Reserve Bank of Dallas (E.
Ann Worthy, Vice President) 2200
North Pearl Street, Dallas, Texas 75201–
2272:
1. Bandera First State Bancshares,
Inc., to become a bank holding company
by acquiring 100 percent of the voting
shares of Bandera First State Bank, a de
novo bank, both of Bandera, Texas.
Board of Governors of the Federal Reserve
System, February 2, 2009.
Robert deV. Frierson,
Deputy Secretary of the Board.
[FR Doc. E9–2458 Filed 2–4–09; 8:45 am]
BILLING CODE 6210–01–S
FEDERAL TRADE COMMISSION
[File No. 091 0000]
BILLING CODE 6210–01–S
FEDERAL RESERVE SYSTEM
Getinge AB and Datascope Corp.;
Analysis of Agreement Containing
Consent Order to Aid Public Comment
Formations of, Acquisitions by, and
Mergers of Bank Holding Companies
AGENCY:
The companies listed in this notice
have applied to the Board for approval,
pursuant to the Bank Holding Company
Act of 1956 (12 U.S.C. 1841 et seq.)
(BHC Act), Regulation Y (12 CFR Part
225), and all other applicable statutes
and regulations to become a bank
holding company and/or to acquire the
assets or the ownership of, control of, or
the power to vote shares of a bank or
bank holding company and all of the
banks and nonbanking companies
owned by the bank holding company,
including the companies listed below.
The applications listed below, as well
as other related filings required by the
Board, are available for immediate
inspection at the Federal Reserve Bank
indicated. The applications also will be
available for inspection at the offices of
SUMMARY: The consent agreement in this
matter settles alleged violations of
federal law prohibiting unfair or
deceptive acts or practices or unfair
methods of competition. The attached
Analysis to Aid Public Comment
describes both the allegations in the
draft complaint and the terms of the
consent order—embodied in the consent
agreement—that would settle these
allegations.
PO 00000
Frm 00023
Fmt 4703
Sfmt 4703
ACTION:
Federal Trade Commission.
Proposed Consent Agreement.
DATES: Comments must be received on
or before March 2, 2009.
ADDRESSES: Interested parties are
invited to submit written comments.
Comments should refer to ‘‘Getinge
Datascope, File No. 091 0000,’’ to
facilitate the organization of comments.
A comment filed in paper form should
E:\FR\FM\05FEN1.SGM
05FEN1
6156
Federal Register / Vol. 74, No. 23 / Thursday, February 5, 2009 / Notices
rwilkins on PROD1PC63 with NOTICES
include this reference both in the text
and on the envelope, and should be
mailed or delivered to the following
address: Federal Trade Commission/
Office of the Secretary, Room 135-H,
600 Pennsylvania Avenue, N.W.,
Washington, D.C. 20580. Comments
containing confidential material must be
filed in paper form, must be clearly
labeled ‘‘Confidential,’’ and must
comply with Commission Rule 4.9(c).
16 CFR 4.9(c) (2005).1 The FTC is
requesting that any comment filed in
paper form be sent by courier or
overnight service, if possible, because
U.S. postal mail in the Washington area
and at the Commission is subject to
delay due to heightened security
precautions. Comments that do not
contain any nonpublic information may
instead be filed in electronic form by
following the instructions on the webbased form at (https://
secure.commentworks.com/ftcGetingeDatascope). To ensure that the
Commission considers an electronic
comment, you must file it on that webbased form.
The FTC Act and other laws the
Commission administers permit the
collection of public comments to
consider and use in this proceeding as
appropriate. All timely and responsive
public comments, whether filed in
paper or electronic form, will be
considered by the Commission, and will
be available to the public on the FTC
website, to the extent practicable, at
www.ftc.gov. As a matter of discretion,
the FTC makes every effort to remove
home contact information for
individuals from the public comments it
receives before placing those comments
on the FTC website. More information,
including routine uses permitted by the
Privacy Act, may be found in the FTC’s
privacy policy, at (https://www.ftc.gov/
ftc/privacy.shtm).
FOR FURTHER INFORMATION CONTACT:
David L. Inglefield, Bureau of
Competition, 600 Pennsylvania Avenue,
NW, Washington, D.C. 20580, (202) 3262637.
SUPPLEMENTARY INFORMATION: Pursuant
to section 6(f) of the Federal Trade
Commission Act, 38 Stat. 721, 15 U.S.C.
46(f), and § 2.34 of the Commission
Rules of Practice, 16 CFR 2.34, notice is
hereby given that the above-captioned
consent agreement containing a consent
1 The comment must be accompanied by an
explicit request for confidential treatment,
including the factual and legal basis for the request,
and must identify the specific portions of the
comment to be withheld from the public record.
The request will be granted or denied by the
Commission’s General Counsel, consistent with
applicable law and the public interest. See
Commission Rule 4.9(c), 16 CFR 4.9(c).
VerDate Nov<24>2008
16:34 Feb 04, 2009
Jkt 217001
order to cease and desist, having been
filed with and accepted, subject to final
approval, by the Commission, has been
placed on the public record for a period
of thirty (30) days. The following
Analysis to Aid Public Comment
describes the terms of the consent
agreement, and the allegations in the
complaint. An electronic copy of the
full text of the consent agreement
package can be obtained from the FTC
Home Page (for January 29, 2009), on
the World Wide Web, at (https://
www.ftc.gov/os/2009/01/index.htm). A
paper copy can be obtained from the
FTC Public Reference Room, Room 130H, 600 Pennsylvania Avenue, NW,
Washington, D.C. 20580, either in
person or by calling (202) 326-2222.
Public comments are invited, and may
be filed with the Commission in either
paper or electronic form. All comments
should be filed as prescribed in the
ADDRESSES section above, and must be
received on or before the date specified
in the DATES section.
Analysis of Agreement Containing
Consent Order to Aid Public Comment
I. Introduction
The Federal Trade Commission
(‘‘Commission’’) has accepted, subject to
final approval, an Agreement
Containing Consent Order (‘‘Consent
Agreement’’) from Getinge AB
(‘‘Getinge’’) and Datascope Corp.
(‘‘Datascope’’). The purpose of the
proposed Consent Agreement is to
remedy the anticompetitive effects that
would otherwise result from Getinge’s
acquisition of Datascope. Under the
terms of the proposed Consent
Agreement, Datascope is required to
divestto a third party its endoscopic
vessel harvesting (‘‘EVH’’) product line.
The proposed Consent Agreement has
been placed on the public record for
thirty days to solicit comments from
interested persons. Comments received
during this period will become part of
the public record. After thirty days, the
Commission will again review the
proposed Consent Agreement and the
comments received, and will decide
whether it should withdraw from the
proposed Consent Agreement or make it
final.
Pursuant to an Agreement and Plan of
Merger dated September 15, 2008,
Getinge proposes to acquire all of the
outstanding shares of Datascope
common stock in a transaction valued at
approximately $865 million. The
Commission’s complaint alleges that the
proposed acquisition, if consummated,
would violate Section 7 of the Clayton
Act, as amended, 15 U.S.C. § 18, and
Section 5 of the Federal Trade
PO 00000
Frm 00024
Fmt 4703
Sfmt 4703
Commission Act, as amended, 15 U.S.C.
§ 45, by lessening competition in the
U.S. market for EVH devices. The
proposed Consent Agreement would
remedy the alleged violations by
replacing the competition that would be
lost in this market as a result of the
acquisition.
II. The Parties
Getinge is a leading global provider of
equipment and systems in the
healthcare and life sciences fields.
Getinge is divided into three business
segments: Medical Systems, Extended
Care, and Infection Control. The
Medical Systems segment manufactures
and sells, among other things, surgical
tables and lights. In January 2008,
Getinge acquired the Cardiac and
Vascular divisions of Boston Scientific
Corporation, including Guidant’s EVH
business, which Boston Scientific had
purchased in 2006. The Boston
Scientific divisions have been integrated
into the Medical Systems segment of
Getinge, and the products are now sold
under the Maquet brand. In 2007,
Getinge generated global sales of $2.2
billion.
Datascope is the world’s leading
supplier of intra-aortic balloon pump
counter pulsation devices, and is a
diversified medical device company
that develops, manufactures and sells
proprietary products for clinical health
care markets in interventional
cardiology, cardiovascular and vascular
surgery, and critical care. Datascope
acquired the EVH devices at issue in
this case from Ethicon, a Johnson &
Johnson company, in January 2006.
Datascope’s global sales for fiscal year
2008 were $230.9 million, and its U.S.
sales were $98.8 million. Datascopic’s
EVH device is part of its Cardiac Assist
business unit, which accounted for
$189.3 million of Datascope’s
worldwide sales.
III. Endoscopic Vessel Harvesting
Devices
The EVH device market is the relevant
product market in which to analyze the
competitive effects of the proposed
acquisition. EVH devices are used in
coronary artery bypass graft (‘‘CABG’’)
surgery, most often to remove the
saphenous vein from the patient’s leg, or
sometimes the radial artery from the
arm, for use as a conduit to bypass one
or more blocked coronary arteries.
Because it is a minimally-invasive
procedure, EVH provides several
benefits over the other two vessel
harvesting methods (open and bridging)
both of which are more invasive, cause
more pain and scarring, and carry a
greater risk of infection. As a result,
E:\FR\FM\05FEN1.SGM
05FEN1
6157
Federal Register / Vol. 74, No. 23 / Thursday, February 5, 2009 / Notices
neither of the other methods is
considered a viable economic
alternative for EVH devices. EVH
devices, therefore, constitute a separate
product market.
The United States is the relevant
geographic market in which to analyze
the effects of the proposed acquisition
on the EVH device market. EVH devices
are subject to regulation and cannot be
marketed or sold in the United States
without prior approval from the U.S.
Food and Drug Administration (‘‘FDA’’).
Receiving FDA approval to market an
EVH device in the United States can be
a lengthy process. EVH devices sold
outside of the United States but not
approved by the FDA for sale in the
United States therefore do not provide
viable competitive alternatives for U.S.
consumers.
The U.S. market for EVH devices is
highly concentrated, and together, the
combined firm would account for
approximately 90 percent of this market.
Firms seeking to enter the market for
EVH devices face regulatory hurdles and
significant intellectual property barriers,
both of which make entry into the
market for EVH devices in the next two
to three years highly unlikely. In
addition, while the use of EVH devices
in CABG surgery is increasing, the
number of CABG procedures and related
vessel harvesting procedures performed
in the United States has been declining
as minimally-invasive stenting
procedures have increased. As a result,
it is unlikely that firms would find it
profitable to enter the EVH device
market in response to a modest increase
in the price of the devices.
The proposed acquisition would
result in a duopoly in the market for
EVH devices and is likely to lead to
increased prices and decreased
innovation for those devices.
IV. The Consent Agreement
The proposed Consent Agreement
effectively remedies the proposed
acquisition’s anticompetitive effects in
the U.S. market for EVH devices by
requiring Datascope to divest its EVH
product line to a Commission-approved
buyer at no minimum price. Datascope
has reached an agreement to divest the
EVH business to Sorin Group USA, Inc.
Trans No.
Sorin, a diversified medical device
company, has a line of cardiovascular
products, including artificial cardiac
valves and coronary stents. Pursuant to
the Consent Agreement, Datascope is
required to accomplish the divestiture
of its EVH product line no later than ten
days after the acquisition is
consummated.
The divestiture will allow Sorin to
enter and compete in the EVH market.
The assets to be divested include all
third party contracts to supply the
components of the EVH product line. In
addition, the Consent Agreement
requires Getinge to grant the
Commission-approved buyer a covenant
not to sue for infringement of any EVHrelated patents that Getinge or
Datascope held at the time of the
acquisition. The Consent Agreement
also permits Datascope to provide
certain transitional services to the
Commission-approved buyer of the EVH
product line assets. These services may
be necessary to ensure a smooth
transition of the product line to the
acquirer and continued and
uninterrupted service to customers
during the transition. The purchaser
will have a secure supply of the EVH
product line because third parties
supply the components of the EVH
product line. Further, Sorin currently is
capable of assembling the components
and marketing the finished products.
V. Appointment of an Interim Monitor
and a Divestiture Trustee
The proposed Consent Agreement
includes a provision that allows the
Commission to appoint an interim
monitor to oversee Datascope’s
compliance with all of its obligations
and performance of its responsibilities
pursuant to the Commission’s Decision
and Order. If appointed, the interim
monitor would be required to file
periodic reports with the Commission to
ensure that the Commission remains
informed about the status of the
divestitures, the efforts being made to
accomplish the divestiture, and the
provision of services and assistance
during the transition period.
Finally, the proposed Consent
Agreement contains provisions that
Acquiring
allow the Commission to appoint a
divestiture trustee if any or all of the
above remedies are not accomplished
within the time frames required by the
Consent Agreement. The divestiture
trustee may be appointed to accomplish
any and all of the remedies required by
the proposed Consent Agreement that
have not yet been fulfilled upon
expiration of the time period allotted for
each.
The purpose of this analysis is to
facilitate public comment on the
proposed Consent Agreement, and it is
not intended to constitute an official
interpretation of the proposed Decision
and Order or to modify its terms in any
way. By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E9–2376 Filed 2–4–09: 8:45 am]
BILLING CODE 6750–01–S
FEDERAL TRADE COMMISSION
Granting of Request for Early
Termination of the Waiting Period
Under the Premerger Notification
Rules
Section 7A of the Clayton Act, 15
U.S.C. 18a, as added by Title II of the
Hart-Scott Rodino Antitrust
Improvements Act of 1976, requires
persons contemplating certain mergers
or acquisitions to give the Federal Trade
Commission and the Assistant Attorney
General advance notice and to wait
designated periods before
consummation of such plans. Section
7A(b)(2) of the Act permits the agencies,
in individual cases, to terminate this
waiting period prior to its expiration
and requires that notice of this action be
published in the Federal Register.
The following transactions were
granted early termination of the waiting
period provided by law and the
premerger notification rules. The grants
were made by the Federal Trade
Commission and the Assistant Attorney
General for the Antitrust Division of the
Department of Justice. Neither agency
intends to take any action with respect
to these proposed acquisitions during
the applicable waiting period.
Acquired
Entities
Transactions Granted Early Termination—01/05/2009
rwilkins on PROD1PC63 with NOTICES
20090214 .........................
Industrial Growth Partners III, L.P .....
Robert F. O’Brien ..............................
CARDINALUHP LLC, OBCORP LLC,
OBCORP, LLC.
Transactions Granted Early Termination—01/06/2009
20090226 .........................
VerDate Nov<24>2008
Renaissance Acquisition Corp ..........
19:12 Feb 04, 2009
Jkt 217001
PO 00000
Frm 00025
First Communications, Inc .................
Fmt 4703
Sfmt 4703
E:\FR\FM\05FEN1.SGM
First Communications, Inc.
05FEN1
]]>Agencies
[Federal Register Volume 74, Number 23 (Thursday, February 5, 2009)]
[Notices]
[Pages 6155-6157]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-2376]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
[File No. 091 0000]
Getinge AB and Datascope Corp.; Analysis of Agreement Containing
Consent Order to Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed Consent Agreement.
-----------------------------------------------------------------------
SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair or deceptive acts or
practices or unfair methods of competition. The attached Analysis to
Aid Public Comment describes both the allegations in the draft
complaint and the terms of the consent order--embodied in the consent
agreement--that would settle these allegations.
DATES: Comments must be received on or before March 2, 2009.
ADDRESSES: Interested parties are invited to submit written comments.
Comments should refer to ``Getinge Datascope, File No. 091 0000,'' to
facilitate the organization of comments. A comment filed in paper form
should
[[Page 6156]]
include this reference both in the text and on the envelope, and should
be mailed or delivered to the following address: Federal Trade
Commission/Office of the Secretary, Room 135-H, 600 Pennsylvania
Avenue, N.W., Washington, D.C. 20580. Comments containing confidential
material must be filed in paper form, must be clearly labeled
``Confidential,'' and must comply with Commission Rule 4.9(c). 16 CFR
4.9(c) (2005).\1\ The FTC is requesting that any comment filed in paper
form be sent by courier or overnight service, if possible, because U.S.
postal mail in the Washington area and at the Commission is subject to
delay due to heightened security precautions. Comments that do not
contain any nonpublic information may instead be filed in electronic
form by following the instructions on the web-based form at (https://
secure.commentworks.com/ftc-GetingeDatascope). To ensure that the
Commission considers an electronic comment, you must file it on that
web-based form.
---------------------------------------------------------------------------
\1\ The comment must be accompanied by an explicit request for
confidential treatment, including the factual and legal basis for
the request, and must identify the specific portions of the comment
to be withheld from the public record. The request will be granted
or denied by the Commission's General Counsel, consistent with
applicable law and the public interest. See Commission Rule 4.9(c),
16 CFR 4.9(c).
---------------------------------------------------------------------------
The FTC Act and other laws the Commission administers permit the
collection of public comments to consider and use in this proceeding as
appropriate. All timely and responsive public comments, whether filed
in paper or electronic form, will be considered by the Commission, and
will be available to the public on the FTC website, to the extent
practicable, at www.ftc.gov. As a matter of discretion, the FTC makes
every effort to remove home contact information for individuals from
the public comments it receives before placing those comments on the
FTC website. More information, including routine uses permitted by the
Privacy Act, may be found in the FTC's privacy policy, at (https://
www.ftc.gov/ftc/privacy.shtm).
FOR FURTHER INFORMATION CONTACT: David L. Inglefield, Bureau of
Competition, 600 Pennsylvania Avenue, NW, Washington, D.C. 20580, (202)
326-2637.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec. 2.34 of
the Commission Rules of Practice, 16 CFR 2.34, notice is hereby given
that the above-captioned consent agreement containing a consent order
to cease and desist, having been filed with and accepted, subject to
final approval, by the Commission, has been placed on the public record
for a period of thirty (30) days. The following Analysis to Aid Public
Comment describes the terms of the consent agreement, and the
allegations in the complaint. An electronic copy of the full text of
the consent agreement package can be obtained from the FTC Home Page
(for January 29, 2009), on the World Wide Web, at (https://www.ftc.gov/
os/2009/01/index.htm). A paper copy can be obtained from the FTC Public
Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, Washington,
D.C. 20580, either in person or by calling (202) 326-2222.
Public comments are invited, and may be filed with the Commission
in either paper or electronic form. All comments should be filed as
prescribed in the ADDRESSES section above, and must be received on or
before the date specified in the DATES section.
Analysis of Agreement Containing Consent Order to Aid Public Comment
I. Introduction
The Federal Trade Commission (``Commission'') has accepted, subject
to final approval, an Agreement Containing Consent Order (``Consent
Agreement'') from Getinge AB (``Getinge'') and Datascope Corp.
(``Datascope''). The purpose of the proposed Consent Agreement is to
remedy the anticompetitive effects that would otherwise result from
Getinge's acquisition of Datascope. Under the terms of the proposed
Consent Agreement, Datascope is required to divestto a third party its
endoscopic vessel harvesting (``EVH'') product line.
The proposed Consent Agreement has been placed on the public record
for thirty days to solicit comments from interested persons. Comments
received during this period will become part of the public record.
After thirty days, the Commission will again review the proposed
Consent Agreement and the comments received, and will decide whether it
should withdraw from the proposed Consent Agreement or make it final.
Pursuant to an Agreement and Plan of Merger dated September 15,
2008, Getinge proposes to acquire all of the outstanding shares of
Datascope common stock in a transaction valued at approximately $865
million. The Commission's complaint alleges that the proposed
acquisition, if consummated, would violate Section 7 of the Clayton
Act, as amended, 15 U.S.C. Sec. 18, and Section 5 of the Federal Trade
Commission Act, as amended, 15 U.S.C. Sec. 45, by lessening
competition in the U.S. market for EVH devices. The proposed Consent
Agreement would remedy the alleged violations by replacing the
competition that would be lost in this market as a result of the
acquisition.
II. The Parties
Getinge is a leading global provider of equipment and systems in
the healthcare and life sciences fields. Getinge is divided into three
business segments: Medical Systems, Extended Care, and Infection
Control. The Medical Systems segment manufactures and sells, among
other things, surgical tables and lights. In January 2008, Getinge
acquired the Cardiac and Vascular divisions of Boston Scientific
Corporation, including Guidant's EVH business, which Boston Scientific
had purchased in 2006. The Boston Scientific divisions have been
integrated into the Medical Systems segment of Getinge, and the
products are now sold under the Maquet brand. In 2007, Getinge
generated global sales of $2.2 billion.
Datascope is the world's leading supplier of intra-aortic balloon
pump counter pulsation devices, and is a diversified medical device
company that develops, manufactures and sells proprietary products for
clinical health care markets in interventional cardiology,
cardiovascular and vascular surgery, and critical care. Datascope
acquired the EVH devices at issue in this case from Ethicon, a Johnson
& Johnson company, in January 2006. Datascope's global sales for fiscal
year 2008 were $230.9 million, and its U.S. sales were $98.8 million.
Datascopic's EVH device is part of its Cardiac Assist business unit,
which accounted for $189.3 million of Datascope's worldwide sales.
III. Endoscopic Vessel Harvesting Devices
The EVH device market is the relevant product market in which to
analyze the competitive effects of the proposed acquisition. EVH
devices are used in coronary artery bypass graft (``CABG'') surgery,
most often to remove the saphenous vein from the patient's leg, or
sometimes the radial artery from the arm, for use as a conduit to
bypass one or more blocked coronary arteries. Because it is a
minimally-invasive procedure, EVH provides several benefits over the
other two vessel harvesting methods (open and bridging) both of which
are more invasive, cause more pain and scarring, and carry a greater
risk of infection. As a result,
[[Page 6157]]
neither of the other methods is considered a viable economic
alternative for EVH devices. EVH devices, therefore, constitute a
separate product market.
The United States is the relevant geographic market in which to
analyze the effects of the proposed acquisition on the EVH device
market. EVH devices are subject to regulation and cannot be marketed or
sold in the United States without prior approval from the U.S. Food and
Drug Administration (``FDA''). Receiving FDA approval to market an EVH
device in the United States can be a lengthy process. EVH devices sold
outside of the United States but not approved by the FDA for sale in
the United States therefore do not provide viable competitive
alternatives for U.S. consumers.
The U.S. market for EVH devices is highly concentrated, and
together, the combined firm would account for approximately 90 percent
of this market. Firms seeking to enter the market for EVH devices face
regulatory hurdles and significant intellectual property barriers, both
of which make entry into the market for EVH devices in the next two to
three years highly unlikely. In addition, while the use of EVH devices
in CABG surgery is increasing, the number of CABG procedures and
related vessel harvesting procedures performed in the United States has
been declining as minimally-invasive stenting procedures have
increased. As a result, it is unlikely that firms would find it
profitable to enter the EVH device market in response to a modest
increase in the price of the devices.
The proposed acquisition would result in a duopoly in the market
for EVH devices and is likely to lead to increased prices and decreased
innovation for those devices.
IV. The Consent Agreement
The proposed Consent Agreement effectively remedies the proposed
acquisition's anticompetitive effects in the U.S. market for EVH
devices by requiring Datascope to divest its EVH product line to a
Commission-approved buyer at no minimum price. Datascope has reached an
agreement to divest the EVH business to Sorin Group USA, Inc. Sorin, a
diversified medical device company, has a line of cardiovascular
products, including artificial cardiac valves and coronary stents.
Pursuant to the Consent Agreement, Datascope is required to accomplish
the divestiture of its EVH product line no later than ten days after
the acquisition is consummated.
The divestiture will allow Sorin to enter and compete in the EVH
market. The assets to be divested include all third party contracts to
supply the components of the EVH product line. In addition, the Consent
Agreement requires Getinge to grant the Commission-approved buyer a
covenant not to sue for infringement of any EVH-related patents that
Getinge or Datascope held at the time of the acquisition. The Consent
Agreement also permits Datascope to provide certain transitional
services to the Commission-approved buyer of the EVH product line
assets. These services may be necessary to ensure a smooth transition
of the product line to the acquirer and continued and uninterrupted
service to customers during the transition. The purchaser will have a
secure supply of the EVH product line because third parties supply the
components of the EVH product line. Further, Sorin currently is capable
of assembling the components and marketing the finished products.
V. Appointment of an Interim Monitor and a Divestiture Trustee
The proposed Consent Agreement includes a provision that allows the
Commission to appoint an interim monitor to oversee Datascope's
compliance with all of its obligations and performance of its
responsibilities pursuant to the Commission's Decision and Order. If
appointed, the interim monitor would be required to file periodic
reports with the Commission to ensure that the Commission remains
informed about the status of the divestitures, the efforts being made
to accomplish the divestiture, and the provision of services and
assistance during the transition period.
Finally, the proposed Consent Agreement contains provisions that
allow the Commission to appoint a divestiture trustee if any or all of
the above remedies are not accomplished within the time frames required
by the Consent Agreement. The divestiture trustee may be appointed to
accomplish any and all of the remedies required by the proposed Consent
Agreement that have not yet been fulfilled upon expiration of the time
period allotted for each.
The purpose of this analysis is to facilitate public comment on the
proposed Consent Agreement, and it is not intended to constitute an
official interpretation of the proposed Decision and Order or to modify
its terms in any way. By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. E9-2376 Filed 2-4-09: 8:45 am]
BILLING CODE 6750-01-S
