May 7, 2021

Antitrust: A Divestiture With a Twist

This Mintz memo discusses a recent settlement agreement that the DOJ reached with a buyer, under the terms of which it agreed to divest a portion of the business in exchange for clearance of a proposed merger.  There’s nothing unusual about an antitrust-related divestiture, but the intro to the memo points out that this one was a little different:

Earlier this week, Stone Canyon Industry Holdings LLC (“Stone Canyon”) and its portfolio company SCIH Salt Holdings Inc. (“SCIH”) reached a settlement agreement with the Department of Justice (“DOJ”) to resolve its investigation of SCIH’s proposed acquisition of Morton Salt Inc. (“Morton”). Under the terms of the settlement agreement, which is subject to Tunney Act review, Stone Canyon and SCIH are required to divest all assets relating to evaporated salt in order to proceed with the Morton acquisition. This settlement agreement is noteworthy in that the divestiture was of the buyer to divest its own assets in order to proceed with the transaction, and the DOJ and the parties reached agreement without a divestiture buyer identified.

The memo notes that although antitrust regulators usually require a buyer to be identified in advance,  the DOJ has on occasion been willing to move forward without an identified buyer if it determines that the divestiture package is “sufficient to attract a purchaser in whose hands the assets will effectively preserve competition, and that there will be a sufficient number of acceptable potential purchasers for the specified asset package.”

John Jenkins