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Teachable moments, cautionary tales from FTC Lafarge, Holcim review file

Last month’s merger forming LafargeHolcim Ltd. expedited transfer of more than $1 billion in cement, concrete and aggregate production and distribution assets in the U.S. and Canada. The Federal Trade Commission justified a decision and order on the sale of those properties per Section 7 of the Clayton Act, a century-old law augmenting the Sherman Act of 1890. It prohibits mergers if “in any line of commerce or in any activity affecting commerce in any section of the country, the effect of such acquisition may be substantially to lessen competition, or to tend to create a monopoly,” FTC notes.

 

From a pre-merger investigation, four of the five FTC Commissioners determined the combined U.S. operations of Lafarge and Holcim would violate Section 7 in a) 12 Relevant Markets, defined around Holcim (US) and Lafarge North America cement plants in Montana and Iowa, plus terminals under both companies from Boston to Minneapolis-St. Paul to New Orleans; and, b) Mid-Atlantic and western Great Lakes regions as served by Holcim (US) Chicago Skyway and Camden, N.J., slag cement plants.

In the cement realm, a Relevant Market can be considered the radius a plant or terminal serves, factoring shipping feasibilities and the census of customers for whom the operator is a primary, secondary or key supplier. In a partial dissent, FTC Commissioner Joshua Wright states a compelling case for a more limited order—asset sales in six Relevant Markets plus the two slag cement regions—but no “remedy” in six other Relevant Markets. The latter would perhaps have deprived a) Summit Materials of an opportunity to double its cement production and distribution capacity along the Mississippi River; and, b) Buzzi Unicem USA of additional Mississippi River and Great Lakes market terminals.

Lafarge and Holcim exhibited heavy cement plant and terminal overlap as they built U.S. portfolios over more than five decades. The elevated market thresholds certain in a merger were not necessarily sufficient cause for the FTC to order the breadth of now-consummated asset sales. Commissioner Wright discusses two theories from the FTC’s 2010 Horizontal Merger Guidelines critical to understanding his position on the agency’s Lafarge, Holcim Decision & Order:

Unilateral effects. Most apparent in a merger-to-monopoly in a Relevant Market, it suggests a union of two competing sellers prevents buyers from playing those sellers off against each other in negotiations.

Coordinated effects. Holds that a merger may diminish competition by enabling or encouraging post-merger coordinated interaction among Relevant Market firms. Coordinated interaction involves conduct by multiple firms that is profitable for each only as a result of the accommodating reactions of the others.

Commissioner Wright challenges his colleagues’ claims of potential coordinated effects in the Lafarge, Holcim review, pointing to three Merger Guidelines “conditions that must each be satisfied to support [such a] theory: (1) a significant increase in concentration, leading to a moderately or highly concentrated market, (2) a market vulnerable to coordinated conduct, and (3) a credible basis for concluding a transaction will enhance that vulnerability.” While conceding the first two, he asserts the Lafarge, Holcim investigation “failed to uncover any evidence to suggest the proposed transaction will increase post-merger incentives to coordinate … no record evidence to provide a credible basis to conclude the merger alters the competitive dynamic in any Relevant Market in a manner that enhances its vulnerability to coordinated conduct.”

Commissioner Wright recognizes cement as a complicated business, where a merging of players like Lafarge and Holcim cannot be judged solely on scale for any one market. The FTC will have an opportunity to learn more about cement production, distribution, sales and market concentration in a potential review of the proposed merger between HeidelbergCement AG and Italcementi S.p.A., parent companies of Lehigh Hanson Inc. and Essroc Cement Corp.