Danaher Corporation and MDS, Inc.; Analysis of Agreement Containing Consent Orders to Aid Public Comment, 5796-5798 [2010-2460]
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5796
Federal Register / Vol. 75, No. 23 / Thursday, February 4, 2010 / Notices
Respondents: Business or other for–
profit.
Number of Respondents: 1,400
respondents; 1,400 responses.
Estimated Time Per Response: 2 hours
x 2 filings per year.
Frequency of Response: On occasion
reporting requirement and third party
disclosure requirement.
Obligation to Respond: Mandatory.
Statutory authority for this collection of
information is contained in 47 U.S.C.
sections 151–154, 201, 202, 251–254,
256, 271 and 303(r).
Total Annual Burden: 5,600 hours.
Privacy Act Impact Assessment: N/A.
Nature and Extent of Confidentiality:
The Commission is not requesting
respondents to submit confidential
information to the Commission. Any
respondent who submits information to
the Commission that they believe is
confidential may request confidential
treatment of such information under 47
CFR 0.459 of the Commission’s rules.
Need and Uses: The Commission will
submit this expiring information
collection to the Office of Management
and Budget (OMB) during this comment
period in order to obtain the three year
clearance from them. There is no change
to the Commission’s reporting and/third
party disclosure requirements.
The Commission asked whether
physical collocation in remote terminals
presents technical or security concerns
and, if so, whether these concerns
warrant modification of its collocation
rules. The Commission asked whether
incumbent LECs should be required to
provide requesting carriers with
demographic and other information
regarding particular remote terminals
similar to the information available
regarding incumbent LEC central
offices. Requesting carriers use
demographic and other information
obtained from incumbent LECs to
determine whether they wish to
collocate at particular remote terminals.
This proposed collection in the
Second Further Notice of Proposed
Rulemaking (FCC 00–297) will be used
by the Commission, the state
commissions, and competitive carriers
to facilitate the deployment of advanced
services and other telecommunications
services in implementation of section
251(c)(6) of the Communications Act of
1934, as amended.
Federal Communications Commission.
Marlene H. Dortch,
Secretary, Office of the Secretary, Office of
Managing Director.
[FR Doc. 2010–2363 Filed 2–3–10; 8:45 am]
BILLING CODE 6712–01–S
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FEDERAL TRADE COMMISSION
[File No. 091 0159]
Danaher Corporation and MDS, Inc.;
Analysis of Agreement Containing
Consent Orders to Aid Public
Comment
Federal Trade Commission.
Proposed Consent Agreement.
AGENCY:
ACTION:
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 1, 2010.
ADDRESSES: Interested parties are
invited to submit written comments
electronically or in paper form.
Comments should refer to
‘‘DanaherMDS, File No. 091 0159’’ to
facilitate the organization of comments.
Please note that your comment —
including your name and your state —
will be placed on the public record of
this proceeding, including on the
publicly accessible FTC website, at
(https://www.ftc.gov/os/
publiccomments.shtm).
Because comments will be made
public, they should not include any
sensitive personal information, such as
an individual’s Social Security Number;
date of birth; driver’s license number or
other state identification number, or
foreign country equivalent; passport
number; financial account number; or
credit or debit card number. Comments
also should not include any sensitive
health information, such as medical
records or other individually
identifiable health information. In
addition, comments should not include
any ‘‘[t]rade secret or any commercial or
financial information which is obtained
from any person and which is privileged
or confidential. . . .,’’ as provided in
Section 6(f) of the FTC Act, 15 U.S.C.
46(f), and Commission Rule 4.10(a)(2),
16 CFR 4.10(a)(2). Comments containing
material for which confidential
treatment is requested must be filed in
paper form, must be clearly labeled
‘‘Confidential,’’ and must comply with
FTC Rule 4.9(c), 16 CFR 4.9(c).1
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.
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Because paper mail addressed to the
FTC is subject to delay due to
heightened security screening, please
consider submitting your comments in
electronic form. Comments filed in
electronic form should be submitted by
using the following weblink: (https://
public.commentworks.com/ftc/
DanaherMDS) and following the
instructions on the web-based form. To
ensure that the Commission considers
an electronic comment, you must file it
on the web-based form at the weblink:
(https://public.commentworks.com/ftc/
DanaherMDS). If this Notice appears at
(https://www.regulations.gov/search/
index.jsp), you may also file an
electronic comment through that
website. The Commission will consider
all comments that regulations.gov
forwards to it. You may also visit the
FTC website at (https://www.ftc.gov/) to
read the Notice and the news release
describing it.
A comment filed in paper form
should include the ‘‘DanaherMDS, File
No. 091 0159’’ 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 H-135
(Annex D), 600 Pennsylvania Avenue,
NW, Washington, DC 20580. 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.
The Federal Trade Commission Act
(‘‘FTC Act’’) and other laws the
Commission administers permit the
collection of public comments to
consider and use in this proceeding as
appropriate. The Commission will
consider all timely and responsive
public comments that it receives,
whether filed in paper or electronic
form. Comments received will be
available to the public on the FTC
website, to the extent practicable, at
(https://www.ftc.gov/os/
publiccomments.shtm). As a matter of
discretion, the Commission 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).
The request will be granted or denied by the
Commission’s General Counsel, consistent with
applicable law and the public interest. See FTC
Rule 4.9(c), 16 CFR 4.9(c).
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Federal Register / Vol. 75, No. 23 / Thursday, February 4, 2010 / Notices
FOR FURTHER INFORMATION CONTACT:
Michael R. Moiseyev (202-326-3106) or
Lynda Lao (202-326-3054), Bureau of
Competition, 600 Pennsylvania Avenue,
NW, Washington, D.C. 20580.
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 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 27, 2010), on
the World Wide Web, at (https://
www.ftc.gov/os/actions.shtm). 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.
period will become part of the public
record. After 30 days, the Commission
will again review the proposed Consent
Agreement and will decide whether it
should withdraw from the proposed
Consent Agreement, modify it, or make
it final.
On September 2, 2009, Danaher
entered into an agreement to acquire the
stock and assets of MDS Analytical
Technologies from MDS. The
Commission’s complaint alleges the
facts described below and 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 FTC Act, as amended,
15 U.S.C. 45, by lessening competition
in the market for laser microdissection
devices.
srobinson on DSKHWCL6B1PROD with NOTICES
Analysis of Agreement Containing
Consent Order to Aid Public Comment
II. The Parties
Danaher, headquartered in
Washington, DC, is a global supplier of
professional, medical, industrial,
commercial, and consumer products.
Danaher’s Leica Microsystems (‘‘Leica’’)
business operates within its Medical
Technologies segment. Leica
manufactures and sells laser
microdissection devices.
Headquartered in Mississauga,
Ontario, MDS is a life sciences company
that operates three core businesses,
MDS Analytical Technologies, MDS
Nordion, and MDS Pharma Services.
MDS’s Arcturus business, which
assembles and sells laser
microdissection devices and chemical
reagents, is a part of MDS Analytical
Technologies.
I. Introduction
The Federal Trade Commission
(‘‘Commission’’) has accepted from
Danaher Corporation (‘‘Danaher’’) and
MDS, Inc. (‘‘MDS’’), subject to final
approval, an Agreement Containing
Consent Orders (‘‘Consent Agreement’’),
which is designed to remedy the
anticompetitive effects resulting from
Danaher’s acquisition of the stock and
assets of MDS Analytical Technologies
(US) Inc. (‘‘MDS Analytical
Technologies’’), a subsidiary of MDS.
Under the terms of the Consent
Agreement, Danaher will divest the
assets of MDS’s Arcturus business
segment, which includes assets relating
to the manufacture and sale of laser
microdissection devices and associated
reagent products, to Life Technologies
Corp. (‘‘Life Technologies’’) within 10
days after the date the Decision and
Order (‘‘Order’’) becomes final. The
proposed Consent Agreement has been
placed on the public record for 30 days
to solicit comments from interested
persons. Comments received during this
III. Laser Microdissection Devices
Laser microdissection devices are
used to separate small groups of cells —
or even a single cell — from larger tissue
samples for specialized tests, such as
DNA analysis, RNA analysis, or protein
profiling. These devices are fully
integrated machines that incorporate a
laser, a computer, and a monitor with a
microscope. Laser microdissection is a
particularly useful technique in the
fields of molecular pathology, cell
biology, oncology, and forensic
medicine where scientists and
researchers must separate small cell
samples from heterogeneous tissue in
order to analyze disease progression and
develop more targeted treatments. For
these scientists and researchers, the
evidence indicates that laser
microdissection devices constitute a
relevant market for antitrust inquiry.
Although other techniques exist for
separating cells or proteins, none are as
precise or reliable as laser
microdissection. Accordingly, if the
price of laser microdissection devices
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were to increase by five or ten percent,
customers would not switch to any
other technique or device.
The relevant geographic area in which
to evaluate the market for laser
microdissection devices is no larger
than North America. Customers are
unwilling to consider laser
microdissection device suppliers that do
not have a service and support
infrastructure that can provide a timely
response to a maintenance call.
Additionally, customers in North
America strongly prefer laser
microdissection suppliers that have an
established reputation among their
colleagues in the United States and the
rest of North America. Whether the
geographic market is defined as North
America or the United States, however,
is unlikely to have any impact on the
ultimate antitrust analysis because the
same firms compete in each area.
With only four current competitors,
the market for laser microdissection
devices is highly concentrated. The
proposed acquisition would combine
Danaher’s Leica brand of laser
microdissection devices with MDS’s
Arcturus brand, leaving only three
viable competitors. Laser
microdissection devices are generally
purchased through a competitive
evaluation process. The four available
products are highly differentiated,
which leads to competition in a number
of areas, including features, reliability,
performance, price, and service. The
elimination of the direct competition
between the Leica and Arcturus devices
could allow Danaher to exercise market
power unilaterally by increasing prices
or decreasing innovation or service,
particularly to those customers who
view Leica and Arcturus as their top
two choices.
Neither new entry nor repositioning
and expansion sufficient to deter or
counteract the anticompetitive effects of
the proposed acquisition in the laser
microdissection market is likely to
occur within two years. A de novo
entrant to the laser microdissection
market would face significant
impediments to timely and sufficient
entry. A firm would have to design,
develop, and test a product with at least
comparable functionality to the existing
devices, which would also require
navigating around the patents of the
current competitors. Furthermore, a new
entrant would have to establish a
service and support infrastructure in
North America. Perhaps most
importantly, a new entrant would have
to engage leading researchers and
practitioners to develop a reputation for
quality and reliability. For existing
foreign firms that currently sell laser
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Federal Register / Vol. 75, No. 23 / Thursday, February 4, 2010 / Notices
srobinson on DSKHWCL6B1PROD with NOTICES
microdissection devices outside of
North America, cultivating the
necessary reputation is a major barrier
to competitively significant entry into
the North American market. It can take
several years to acquire a reputation on
par with the current laser
microdissection device brands in order
to make a significant market impact.
Accordingly, entry by a foreign firm is
unlikely to make a significant market
impact sufficient to counteract any
anticompetitive effects from the
proposed transaction within the next
two years.
IV. The Consent Agreement
The proposed Consent Agreement
eliminates the competitive concerns
raised by Danaher’s proposed
acquisition of MDS Analytical
Technologies by requiring the
divestiture of MDS’s assets relating to
the manufacture and sale of laser
microdissection devices. Danaher and
MDS have agreed to sell the Arcturus
assets, including the laser
microdissection device business, as well
as a related reagents business, to Life
Technologies within 10 days after the
date the Order becomes final.
Life Technologies possesses the
knowledge, experience, and financial
viability to successfully purchase and
manage the divestiture assets and
replace MDS as an effective competitor
in the laser microdissection market.
Headquartered in Carlsbad, California,
Life Technologies is a life sciences
company that manufactures and sells
scientific research equipment that it
distributes throughout the world. Life
Technologies does not currently
compete against Danaher and MDS in
the sale of laser microdissection
devices, but it does manufacture and
sell reagents for downstream analysis
using tissue samples obtained through
laser microdissection. The Arcturus
business would be a natural fit into Life
Technologies’s product portfolio, since
both sets of products are marketed to the
same customer base.
Pursuant to the Consent Agreement,
Life Technologies would receive all the
assets necessary to operate MDS’s
current laser microdissection business,
including equipment used to assemble
the Arcturus laser microdissection
device, Arcturus software, and reagents
that are sold as complementary
downstream products to Arcturus
customers. In addition to key Arcturus
employees, who would be made
available to Life Technologies, the
Consent Agreement requires MDS to
provide Life Technologies with access
to certain other employees who may be
needed to facilitate the transition of the
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Arcturus laser microdissection assets.
The Consent Agreement also requires
MDS to transfer all the Arcturus
intellectual property, including patent
licenses for infrared laser
microdissection device technology.
Divestiture of all of the Arcturus laser
microdissection assets will ensure that
Life Technologies has a full line of highquality laser microdissection devices,
enabling it to compete immediately with
the merged entity.
The Commission may appoint an
interim monitor to oversee the
divestiture of the Arcturus laser
microdissection business at any time
after the Consent Agreement has been
signed. In order to ensure that the
Commission remains informed about
the status of the proposed divestitures,
the proposed Consent Agreement
requires the parties to file periodic
reports with the Commission until the
divestiture is accomplished. If the
Commission determines that Danaher
has not fully complied with its
obligations under the Order within 10
days after the date the Order becomes
final, the Commission may appoint a
divestiture trustee to divest the Arcturus
assets to a Commission-approved
acquirer.
The purpose of this analysis is to
facilitate public comment on the
Consent Agreement, and it is not
intended to constitute an official
interpretation of the proposed Order or
the Agreement to Maintain Assets, or to
modify their terms in any way.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2010–2460 Filed 2–3–10: 7:15 am]
BILLING CODE 6750–01–S
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
National Institute on Drug Abuse;
Notice of Closed Meetings
Pursuant to section 10(d) of the
Federal Advisory Committee Act, as
amended (5 U.S.C. App.), notice is
hereby given of the following meetings.
The meetings will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), Title 5 U.S.C.,
as amended. The grant applications and
the discussions could disclose
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
individuals associated with the grant
applications, the disclosure of which
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would constitute a clearly unwarranted
invasion of personal privacy.
Name of Committee: National Institute on
Drug Abuse, Special Emphasis Panel;
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HIV/AIDS and Drug Use.
Date: February 18, 2010.
Time: 8 a.m. to 5 p.m.
Agenda: To review and evaluate grant
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Place: Sofitel Washington DC, Lafayette
Square, 806 15th Street, NW., Madeline
Room, Washington, DC 20005.
Contact Person: Scott Chen, PhD, Scientific
Review Officer, Office of Extramural Affairs,
National Institute on Drug Abuse, National
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Boulevard, Room 220, MSC 8401, Bethesda,
MD 20892, 301–443–9511,
chensc@mail.nih.gov.
Name of Committee: National Institute on
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Date: February 25, 2010.
Time: 9 a.m. to 5 p.m.
Agenda: To review and evaluate grant
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Place: Hyatt Regency Bethesda, One
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Contact Person: Minna Liang, PhD,
Scientific Review Officer, Training and
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Room 220, MSC 8401, Bethesda, MD 20852,
301–435–1432, liangm@nida.nih.gov.
Name of Committee: National Institute on
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Research Development Program.
Date: February 25, 2010.
Time: 10:30 a.m. to 1:30 p.m.
Agenda: To review and evaluate grant
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Place: National Institutes of Health, 6101
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Contact Person: Nadine Rogers, PhD,
Scientific Review Administrator, Office of
Extramural Affairs, National Institute on
Drug Abuse, NIH, DHHS, Room 220, MSC
8401, 6101 Executive Boulevard, Bethesda,
MD 20892–8401, 301–402–2105,
rogersn2@nida.nih.gov.
Name of Committee: National Institute on
Drug Abuse Special Emphasis Panel;
Diversity-promoting Institutions’ Drug Abuse
Research Development Program B.
Date: February 25, 2010.
Time: 2 p.m. to 4 p.m.
Agenda: To review and evaluate grant
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Place: National Institutes of Health, 6101
Executive Boulevard, Rockville, MD 20852.
Contact Person: Meenaxi Hiremath, PhD,
Health Scientist Administrator, Office of
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Name of Committee: National Institute on
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]]>Agencies
[Federal Register Volume 75, Number 23 (Thursday, February 4, 2010)]
[Notices]
[Pages 5796-5798]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-2460]
=======================================================================
-----------------------------------------------------------------------
FEDERAL TRADE COMMISSION
[File No. 091 0159]
Danaher Corporation and MDS, Inc.; Analysis of Agreement
Containing Consent Orders 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 1, 2010.
ADDRESSES: Interested parties are invited to submit written comments
electronically or in paper form. Comments should refer to ``DanaherMDS,
File No. 091 0159'' to facilitate the organization of comments. Please
note that your comment -- including your name and your state -- will be
placed on the public record of this proceeding, including on the
publicly accessible FTC website, at (https://www.ftc.gov/os/publiccomments.shtm).
Because comments will be made public, they should not include any
sensitive personal information, such as an individual's Social Security
Number; date of birth; driver's license number or other state
identification number, or foreign country equivalent; passport number;
financial account number; or credit or debit card number. Comments also
should not include any sensitive health information, such as medical
records or other individually identifiable health information. In
addition, comments should not include any ``[t]rade secret or any
commercial or financial information which is obtained from any person
and which is privileged or confidential. . . .,'' as provided in
Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and Commission Rule
4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing material for which
confidential treatment is requested must be filed in paper form, must
be clearly labeled ``Confidential,'' and must comply with FTC Rule
4.9(c), 16 CFR 4.9(c).\1\
---------------------------------------------------------------------------
\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 FTC Rule 4.9(c), 16 CFR
4.9(c).
---------------------------------------------------------------------------
Because paper mail addressed to the FTC is subject to delay due to
heightened security screening, please consider submitting your comments
in electronic form. Comments filed in electronic form should be
submitted by using the following weblink: (https://public.commentworks.com/ftc/DanaherMDS) and following the instructions
on the web-based form. To ensure that the Commission considers an
electronic comment, you must file it on the web-based form at the
weblink: (https://public.commentworks.com/ftc/DanaherMDS). If this
Notice appears at (https://www.regulations.gov/search/index.jsp), you
may also file an electronic comment through that website. The
Commission will consider all comments that regulations.gov forwards to
it. You may also visit the FTC website at (https://www.ftc.gov/) to read
the Notice and the news release describing it.
A comment filed in paper form should include the ``DanaherMDS, File
No. 091 0159'' 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 H-135 (Annex D), 600
Pennsylvania Avenue, NW, Washington, DC 20580. 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.
The Federal Trade Commission Act (``FTC Act'') and other laws the
Commission administers permit the collection of public comments to
consider and use in this proceeding as appropriate. The Commission will
consider all timely and responsive public comments that it receives,
whether filed in paper or electronic form. Comments received will be
available to the public on the FTC website, to the extent practicable,
at (https://www.ftc.gov/os/publiccomments.shtm). As a matter of
discretion, the Commission 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).
[[Page 5797]]
FOR FURTHER INFORMATION CONTACT: Michael R. Moiseyev (202-326-3106) or
Lynda Lao (202-326-3054), Bureau of Competition, 600 Pennsylvania
Avenue, NW, Washington, D.C. 20580.
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 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 27, 2010), on the World Wide Web, at (https://www.ftc.gov/os/actions.shtm). 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 from
Danaher Corporation (``Danaher'') and MDS, Inc. (``MDS''), subject to
final approval, an Agreement Containing Consent Orders (``Consent
Agreement''), which is designed to remedy the anticompetitive effects
resulting from Danaher's acquisition of the stock and assets of MDS
Analytical Technologies (US) Inc. (``MDS Analytical Technologies''), a
subsidiary of MDS.
Under the terms of the Consent Agreement, Danaher will divest the
assets of MDS's Arcturus business segment, which includes assets
relating to the manufacture and sale of laser microdissection devices
and associated reagent products, to Life Technologies Corp. (``Life
Technologies'') within 10 days after the date the Decision and Order
(``Order'') becomes final. The proposed Consent Agreement has been
placed on the public record for 30 days to solicit comments from
interested persons. Comments received during this period will become
part of the public record. After 30 days, the Commission will again
review the proposed Consent Agreement and will decide whether it should
withdraw from the proposed Consent Agreement, modify it, or make it
final.
On September 2, 2009, Danaher entered into an agreement to acquire
the stock and assets of MDS Analytical Technologies from MDS. The
Commission's complaint alleges the facts described below and 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 FTC Act, as
amended, 15 U.S.C. 45, by lessening competition in the market for laser
microdissection devices.
II. The Parties
Danaher, headquartered in Washington, DC, is a global supplier of
professional, medical, industrial, commercial, and consumer products.
Danaher's Leica Microsystems (``Leica'') business operates within its
Medical Technologies segment. Leica manufactures and sells laser
microdissection devices.
Headquartered in Mississauga, Ontario, MDS is a life sciences
company that operates three core businesses, MDS Analytical
Technologies, MDS Nordion, and MDS Pharma Services. MDS's Arcturus
business, which assembles and sells laser microdissection devices and
chemical reagents, is a part of MDS Analytical Technologies.
III. Laser Microdissection Devices
Laser microdissection devices are used to separate small groups of
cells -- or even a single cell -- from larger tissue samples for
specialized tests, such as DNA analysis, RNA analysis, or protein
profiling. These devices are fully integrated machines that incorporate
a laser, a computer, and a monitor with a microscope. Laser
microdissection is a particularly useful technique in the fields of
molecular pathology, cell biology, oncology, and forensic medicine
where scientists and researchers must separate small cell samples from
heterogeneous tissue in order to analyze disease progression and
develop more targeted treatments. For these scientists and researchers,
the evidence indicates that laser microdissection devices constitute a
relevant market for antitrust inquiry. Although other techniques exist
for separating cells or proteins, none are as precise or reliable as
laser microdissection. Accordingly, if the price of laser
microdissection devices were to increase by five or ten percent,
customers would not switch to any other technique or device.
The relevant geographic area in which to evaluate the market for
laser microdissection devices is no larger than North America.
Customers are unwilling to consider laser microdissection device
suppliers that do not have a service and support infrastructure that
can provide a timely response to a maintenance call. Additionally,
customers in North America strongly prefer laser microdissection
suppliers that have an established reputation among their colleagues in
the United States and the rest of North America. Whether the geographic
market is defined as North America or the United States, however, is
unlikely to have any impact on the ultimate antitrust analysis because
the same firms compete in each area.
With only four current competitors, the market for laser
microdissection devices is highly concentrated. The proposed
acquisition would combine Danaher's Leica brand of laser
microdissection devices with MDS's Arcturus brand, leaving only three
viable competitors. Laser microdissection devices are generally
purchased through a competitive evaluation process. The four available
products are highly differentiated, which leads to competition in a
number of areas, including features, reliability, performance, price,
and service. The elimination of the direct competition between the
Leica and Arcturus devices could allow Danaher to exercise market power
unilaterally by increasing prices or decreasing innovation or service,
particularly to those customers who view Leica and Arcturus as their
top two choices.
Neither new entry nor repositioning and expansion sufficient to
deter or counteract the anticompetitive effects of the proposed
acquisition in the laser microdissection market is likely to occur
within two years. A de novo entrant to the laser microdissection market
would face significant impediments to timely and sufficient entry. A
firm would have to design, develop, and test a product with at least
comparable functionality to the existing devices, which would also
require navigating around the patents of the current competitors.
Furthermore, a new entrant would have to establish a service and
support infrastructure in North America. Perhaps most importantly, a
new entrant would have to engage leading researchers and practitioners
to develop a reputation for quality and reliability. For existing
foreign firms that currently sell laser
[[Page 5798]]
microdissection devices outside of North America, cultivating the
necessary reputation is a major barrier to competitively significant
entry into the North American market. It can take several years to
acquire a reputation on par with the current laser microdissection
device brands in order to make a significant market impact.
Accordingly, entry by a foreign firm is unlikely to make a significant
market impact sufficient to counteract any anticompetitive effects from
the proposed transaction within the next two years.
IV. The Consent Agreement
The proposed Consent Agreement eliminates the competitive concerns
raised by Danaher's proposed acquisition of MDS Analytical Technologies
by requiring the divestiture of MDS's assets relating to the
manufacture and sale of laser microdissection devices. Danaher and MDS
have agreed to sell the Arcturus assets, including the laser
microdissection device business, as well as a related reagents
business, to Life Technologies within 10 days after the date the Order
becomes final.
Life Technologies possesses the knowledge, experience, and
financial viability to successfully purchase and manage the divestiture
assets and replace MDS as an effective competitor in the laser
microdissection market. Headquartered in Carlsbad, California, Life
Technologies is a life sciences company that manufactures and sells
scientific research equipment that it distributes throughout the world.
Life Technologies does not currently compete against Danaher and MDS in
the sale of laser microdissection devices, but it does manufacture and
sell reagents for downstream analysis using tissue samples obtained
through laser microdissection. The Arcturus business would be a natural
fit into Life Technologies's product portfolio, since both sets of
products are marketed to the same customer base.
Pursuant to the Consent Agreement, Life Technologies would receive
all the assets necessary to operate MDS's current laser microdissection
business, including equipment used to assemble the Arcturus laser
microdissection device, Arcturus software, and reagents that are sold
as complementary downstream products to Arcturus customers. In addition
to key Arcturus employees, who would be made available to Life
Technologies, the Consent Agreement requires MDS to provide Life
Technologies with access to certain other employees who may be needed
to facilitate the transition of the Arcturus laser microdissection
assets. The Consent Agreement also requires MDS to transfer all the
Arcturus intellectual property, including patent licenses for infrared
laser microdissection device technology. Divestiture of all of the
Arcturus laser microdissection assets will ensure that Life
Technologies has a full line of high-quality laser microdissection
devices, enabling it to compete immediately with the merged entity.
The Commission may appoint an interim monitor to oversee the
divestiture of the Arcturus laser microdissection business at any time
after the Consent Agreement has been signed. In order to ensure that
the Commission remains informed about the status of the proposed
divestitures, the proposed Consent Agreement requires the parties to
file periodic reports with the Commission until the divestiture is
accomplished. If the Commission determines that Danaher has not fully
complied with its obligations under the Order within 10 days after the
date the Order becomes final, the Commission may appoint a divestiture
trustee to divest the Arcturus assets to a Commission-approved
acquirer.
The purpose of this analysis is to facilitate public comment on the
Consent Agreement, and it is not intended to constitute an official
interpretation of the proposed Order or the Agreement to Maintain
Assets, or to modify their terms in any way.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2010-2460 Filed 2-3-10: 7:15 am]
BILLING CODE 6750-01-S
