Summary of Relevant Facts
On January 17, 2005, P&G signed an agreement to acquire complete control ofGillette through an exchange of common stock valued at $57 billion.
Shortly thereafter,P&G and Gillette each filed required pre-merger notification reports with theCommission pursuant to the Hart-Scott-Rodino Act, 15 U.S.C. § 18a(a). This began astatutory waiting period preventing P&G and Gillette from completing their merger.On or about March 25, the Commission, acting under 15 U.S.C. § 18a(e), issued arequest for additional information about the merger.
Such “second requests” aregenerally a prelude to enforcement action, and this case was no exception. OnSeptember 29, the Commission issued a Complaint alleging the merger violated Section7 of the Clayton Act, 15 U.S.C. § 18, and by extension Section 5 of the Federal TradeCommission Act, 15 U.S.C. § 45. The Complaint said the merger, as proposed, wouldillegally reduce competition in several markets, including “at-home teeth whiteningproducts” and “adult battery-powered toothbrushes.”
To appease the Commission’s objections, P&G and Gillette agreed not to contest theComplaint, and they signed an Agreement Containing Consent Orders that includedthe proposed Decision and Order. Under the Agreement, P&G will sell product linesand make additional concessions to preserve the status quo in the markets identified by
2Chris Isidore, “P&G to buy Gillette for $57B,” CNN/Money (Jan. 28, 2005) <available athttp://money.cnn.com/2005/01/28/news/fortune500/pg_gillette/>.3Procter & Gamble news release (March 22, 2005) <available athttp://www.pginvestor.com/phoenix.zhtml?c=104574&p=irol-newsArticle&ID=687902&highlight=>.4Compl. ¶ 21.