Getinge AB and Datascope Corp.; Analysis of Agreement Containing Consent Order to Aid Public Comment, 6155-6157 [E9-2376]

Download as PDF 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 http://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 http:// www.regulations.gov or e-mail. The http://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 http:// 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 http:// www.epa.gov/epahome/dockets.htm. Docket: All documents in the docket are listed in the http:// 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 http:// 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 (http:// 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 (http://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 (http:// 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]


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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 (http://
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 (http://
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 (http://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