By E. Darius Sturmer, J.D.
Global science and technology innovator Danaher Corporation must sell assets in ten product markets to Sartorius to resolve the agency’s concerns.
The FTC has announced its conditional approval of the $21.4 billion acquisition of General Electric’s biopharmaceutical business—a division of GE Life Sciences—by Danaher Corporation, subject to the divestiture of assets in 10 distinct overlapping product areas. GE’s Biopharma is "a leading provider of instruments, consumables, and software that support the research, discovery, process development, and manufacturing workflows of biopharmaceutical drugs." When the deal is completed, GE Biopharma would be established a stand-alone operating company within Danaher’s Life Sciences segment (In the Matter of Danaher Corp., FTC Dkt. C-4710, File No. 1910082).
In its complaint challenging the companies’ original proposed transaction, which was announced in February 2019, the government alleged that the deal would substantially lessen competition in highly concentrated product markets for ten products that biopharmaceutical drug manufacturers use to make their drugs: microcarrier beads; conventional low-pressure liquid chromatography columns; conventional low-pressure liquid chromatography skids; single-use low pressure liquid chromatography skids; three different types of chromatography resins; low-pressure liquid chromatography continuous chromatography systems; single-use tangential flow filtration systems; and label-free molecular characterization instruments. In each of these markets, Danaher and GE were among few significant competitors, and their combination would have given them a significant portion of the market, in several instances reducing the number of major suppliers from three to two.
The FTC’s proposed consent order took into consideration steps already taken by Danaher towards obtaining regulatory approval. In October 2019, the company reached an agreement to sell several of its businesses to Sartorius AG. These included its label-free biomolecular characterization, chromatography hardware and resins, and microcarriers and particle validation standards businesses. The proposed consent agreement requires Danaher to supply the divested products to Sartorius for a limited time while Sartorius establishes its own manufacturing capability.
The closing of the acquisition remains subject to other customary closing conditions set forth in the purchase agreement, but Danaher announced that it currently expects that it will be completed by March 31, 2020. The transaction had already been approved by the European Commission and the antitrust authorities of Brazil, China, Israel, Japan, Korea, and Russia.
Attorneys: Leon B. Greenfield and Hartmut Schneider (Wilmer Cutler Pickering Hale and Dorr LLP) for Danaher Corporation. Sharis A. Pozen and Clifford Chance for General Electric Company. Deborah A. Garza and Anne Y. Lee (Covington & Burling) for General Electric Company. James Weiss, Deputy Assistant Director Daniel Zach, Acting Assistant Director Gail F. Levine, Deputy Director Ian R. Conner, Lisa De Marchi Sleigh, and William Cooke (FTC Bureau of Competition). Dr. Joachim Kreuzburg and Jens Artelt for Sartorius AG. Fiona A. Schaeffer (Milbank LLP) for Sartorius AG.
Companies: General Electric Co.; Sartorius AG; Danaher Corp.
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