Notice2024-10731
Exxon Mobil Corporation/Pioneer Natural Resources Company; Analysis of Agreement Containing Consent Order To Aid Public Comment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 16, 2024
Issuing agencies
Federal Trade Commission
Abstract
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair methods of competition. The attached Analysis of Proposed Consent Order to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order--embodied in the consent agreement--that would settle these allegations.
Full Text
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<title>Federal Register, Volume 89 Issue 96 (Thursday, May 16, 2024)</title>
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[Federal Register Volume 89, Number 96 (Thursday, May 16, 2024)]
[Notices]
[Pages 42875-42879]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-10731]
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FEDERAL TRADE COMMISSION
[File No. 241 0004]
Exxon Mobil Corporation/Pioneer Natural Resources Company;
Analysis of Agreement Containing Consent Order To Aid Public Comment
AGENCY: Federal Trade Commission.
ACTION: Proposed consent agreement; request for comment.
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SUMMARY: The consent agreement in this matter settles alleged
violations of federal law prohibiting unfair methods of competition.
The attached Analysis of Proposed Consent Order to Aid Public Comment
describes both the allegations in the 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 June 17, 2024.
ADDRESSES: Interested parties may file comments online or on paper by
following the instructions in the Request for Comment part of the
SUPPLEMENTARY INFORMATION section below. Please write: ``Exxon Mobil
Corporation/Pioneer Natural Resources Company; File No. 241 0004'' on
your comment and file your comment online at <a href="https://www.regulations.gov">https://www.regulations.gov</a> by following the instructions on the web-based
form. If you prefer to file your comment on paper, please mail your
comment to the following address: Federal Trade Commission, Office of
the Secretary, 600 Pennsylvania Avenue NW, Mail Stop H-144 (Annex X),
Washington, DC 20580.
FOR FURTHER INFORMATION CONTACT: Albert Teng (202-326-3272), Bureau of
Competition, Federal Trade Commission, 400 7th Street SW, Washington,
DC 20024.
SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal
Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule Sec. 2.34, 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 30 days. The following
Analysis of Agreement Containing Consent Order 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 website at this web address:
<a href="https://www.ftc.gov/news-events/commission-actions">https://www.ftc.gov/news-events/commission-actions</a>.
The public is invited to submit comments on this document. For the
Commission to consider your comment, we must receive it on or before
June 17, 2024. Write ``Exxon Mobil Corporation/Pioneer Natural
Resources Company; File No. 241 0004'' on your comment. Your comment--
including your name and your state--will be placed on the public record
of this proceeding, including, to the extent practicable, on the
<a href="https://www.regulations.gov">https://www.regulations.gov</a> website.
[[Page 42876]]
Because of the agency's heightened security screening, postal mail
addressed to the Commission will be delayed. We strongly encourage you
to submit your comments online through the <a href="https://www.regulations.gov">https://www.regulations.gov</a>
website. If you prefer to file your comment on paper, write ``Exxon
Mobil Corporation/Pioneer Natural Resources Company; File No. 241
0004'' on your comment and on the envelope, and mail your comment to
the following address: Federal Trade Commission, Office of the
Secretary, 600 Pennsylvania Avenue NW, Mail Stop H-144 (Annex X),
Washington, DC 20580.
Because your comment will be placed on the publicly accessible
website at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, you are solely responsible for
making sure your comment does not include any sensitive or confidential
information. In particular, your comment should not include sensitive
personal information, such as your or anyone else'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. You are also
solely responsible for making sure your comment does not include
sensitive health information, such as medical records or other
individually identifiable health information. In addition, your comment
should not include any ``trade secret or any commercial or financial
information which . . . is privileged or confidential''--as provided by
section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule Sec.
4.10(a)(2), 16 CFR 4.10(a)(2)--including competitively sensitive
information such as costs, sales statistics, inventories, formulas,
patterns, devices, manufacturing processes, or customer names.
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 Sec. 4.9(c). In
particular, the written request for confidential treatment that
accompanies the comment must include the factual and legal basis for
the request and must identify the specific portions of the comment to
be withheld from the public record. See FTC Rule Sec. 4.9(c). Your
comment will be kept confidential only if the General Counsel grants
your request in accordance with the law and the public interest. Once
your comment has been posted on <a href="https://www.regulations.gov">https://www.regulations.gov</a>--as legally
required by FTC Rule Sec. 4.9(b)--we cannot redact or remove your
comment from that website, unless you submit a confidentiality request
that meets the requirements for such treatment under FTC Rule Sec.
4.9(c), and the General Counsel grants that request.
Visit the FTC Website at <a href="https://www.ftc.gov">https://www.ftc.gov</a> to read this document
and the news release describing this matter. The 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 it receives on
or before June 17, 2024. For information on the Commission's privacy
policy, including routine uses permitted by the Privacy Act, see
<a href="https://www.ftc.gov/site-information/privacy-policy">https://www.ftc.gov/site-information/privacy-policy</a>.
Analysis of Agreement Containing Consent Order To Aid Public Comment
I. Introduction
The Federal Trade Commission (``Commission'') has accepted for
public comment, subject to final approval, an Agreement Containing
Consent Order (``Consent Agreement'') from Exxon Mobil Corporation
(``Exxon''). Pursuant to an Agreement and Plan of Merger dated October
10, 2023 (``Merger Agreement''), Exxon and Pioneer Natural Resources
Company (``Pioneer'') intend to combine their businesses through a
merger (``the Proposed Acquisition''). The Proposed Acquisition will
further enlarge Exxon--already the largest multinational supermajor oil
company--and make Exxon by far the largest producer of crude oil in the
Permian Basin, the United States' top oil-producing region. The purpose
of the Consent Agreement is to remedy the anticompetitive effects that
otherwise would result from the Proposed Acquisition.
Through public statements and private communications, Pioneer
founder and former CEO Scott D. Sheffield has campaigned to organize
anticompetitive coordinated output reductions between and among U.S.
crude oil producers, and others, including the Organization of
Petroleum Exporting Countries (``OPEC''), and a related cartel of other
oil-producing countries known as OPEC+. Rather than seeking to compete
against OPEC and OPEC+ through independent competitive decision-making,
Mr. Sheffield's goal in recent years at Pioneer has been to align U.S.
oil production with OPEC and OPEC+ country output agreements, thereby
cementing the cartel's position and sharing in the spoils of its market
power.
Under the terms of Exxon and Pioneer's Merger Agreement, Exxon is
required to take all necessary actions to appoint Mr. Sheffield to
Exxon's Board of Directors. Prior attempts to coordinate between Mr.
Sheffield and firms representing a substantial share of the relevant
market are highly informative as to the market's susceptibility to
coordination. The appointment of Mr. Sheffield to Exxon's board as a
result of the Proposed Acquisition will expand the scope of his reach
to promote his anticompetitive messaging and therefore meaningfully
increases the likelihood that these attempts at coordination will bear
fruit. In particular, Mr. Sheffield's post-merger appointment to
Exxon's board would give him a larger platform from which to advocate
for greater industry-wide coordination as well as decision-making input
on not only the largest producer in the Permian Basin, but also the
largest multinational supermajor oil company. Under the terms of the
proposed Decision and Order (``Order''), Exxon is prohibited from
appointing Mr. Sheffield, current Pioneer employees, and certain other
persons affiliated with Pioneer to its board, required to comply with
section 8 of the Clayton Act, 15 U.S.C. 19, and required to attest on a
regular basis that it is complying with the Order.
The Consent Agreement is thus designed to remedy allegations in the
Commission's Complaint 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 meaningfully
increasing the risk of coordination in the relevant market. Absent a
remedy, placing Mr. Sheffield on the Exxon board would harm the
competitive process. The merger, if consummated, would also violate
section 5 of the FTC Act by creating a board interlock among
competitors. Mr. Sheffield currently serves on the board of The
Williams Companies, Inc. (``Williams''), which operates a host of
natural gas pipelines; natural gas gathering, processing, and treating
assets; natural gas and natural gas liquids processing assets; crude
oil transportation assets; and crude oil and natural gas production.
Exxon and Williams are competitors of each other.
The proposed Order presents significant relief for these concerns
and imposes effective and administrable relief. By restricting Mr.
Sheffield and other Pioneer representatives from Exxon's board, the
proposed Order makes clear that signaling coordinated price, output, or
other competitive terms between market participants,
[[Page 42877]]
particularly in the oil and gas industry, may give rise to legal
liability. This Consent Order remedies the harm from the agreement to
place Mr. Sheffield on the Exxon board. The Commission will continue to
investigate mergers and acquisitions activity in the oil and gas
industry and its risks to competition, as well as problematic
unilateral signaling and coordination and attempted coordination among
market participants.
The Consent Agreement has been placed on the public record for 30
days for receipt of comments from interested persons. Comments received
during this period will become part of the public record. After 30
days, the Commission will review the comments received and decide
whether it should withdraw, modify, or finalize the proposed Order.
II. The Merging Parties
Exxon is a public multi-national vertically integrated refiner and
oil and gas producer, with revenues of over $340 billion and operations
in the United States and worldwide. Exxon is headquartered in Spring,
Texas, and operates refineries throughout the world that produce
transportation fuels and petrochemicals.
Pioneer is a public independent oil and gas company headquartered
in Irving, Texas with revenues of nearly $20 billion. Pioneer produces
crude oil and associated natural gas in the Permian Basin.
III. The Agreement and Plan of Merger
On October 10, 2023, Exxon and Pioneer entered into the Merger
Agreement, pursuant to which Exxon agreed to acquire Pioneer for an
enterprise value of approximately $64.5 billion. The terms of the
Merger Agreement state that Exxon ``shall take all necessary actions to
cause Scott D. Sheffield . . . . to be appointed to the board of
directors'' immediately following the consummation of the Proposed
Acquisition. The Commission's Complaint alleges that this effect--Mr.
Sheffield's appointment to the Exxon board--of the Proposed
Acquisition, if consummated, would violate section 7 of the Clayton Act
and section 5 of the FTC Act. Moreover, because Mr. Sheffield's
appointment to Exxon's board would create a board interlock among
competitors, the Proposed Acquisition, if consummated, would also
violate section 5 of the FTC Act.
IV. Relevant Market
A relevant product market in which to assess the Proposed
Acquisition's anticompetitive effects is the development, production,
and sale of crude oil. Crude oil is the main input to produce gasoline,
diesel fuel, heating oil, and jet fuel. Crude oil purchasers generally
cannot switch to alternative commodities without facing substantial
costs. Exxon and Pioneer are engaged in the development, production,
and sale of crude oil. A relevant geographic market in which to analyze
the Proposed Acquisition is global.
V. Effects of The Proposed Acquisition
The Commission's Complaint alleges that the Proposed Acquisition
poses risks to competition by meaningfully increasing the risk of
coordination among remaining firms in the relevant market. The 2023
Merger Guidelines identify three primary factors that indicate a merger
may increase the risk of coordination, including the existence of prior
actual or attempted attempts to coordinate in the market. If any of the
three primary factors are met, the Agencies ``may conclude that post-
merger market conditions are susceptible to coordinated interaction and
that the merger materially increases the risk of coordination.''
Mr. Sheffield's history of attempting to coordinate with other oil
industry participants suggests that the market is susceptible to
anticompetitive coordination--a risk the Proposed Acquisition would
only heighten. The Commission's Complaint lays out evidence, including
from Mr. Sheffield's own public and private statements, of his campaign
to organize anticompetitive coordinated output reductions between and
among U.S. crude oil producers, and others, including OPEC and OPEC+.
Much of this coordination has been with high-ranking OPEC
representatives, thus indicating that firms with a substantial share of
the relevant market have engaged in this conduct. By installing Mr.
Sheffield on Exxon's Board, the Proposed Acquisition risks amplifying
his public messaging and the effectiveness of his private contacts with
OPEC, thereby meaningfully increasing the likelihood of coordination in
the relevant market.
VI. The Proposed Order
The proposed Order imposes several terms to remedy these concerns.
First, the proposed Order prohibits Exxon from appointing Scott
Sheffield to Exxon's board--as required by the Merger Agreement--or to
serve in an advisory capacity to Exxon's board or Exxon's management.
Second, for a period of five years, Exxon is also prohibited from
appointing Pioneer's current employees and certain other persons
affiliated with Pioneer to its board.
Third, the proposed Order prohibits Exxon's directors and officers
from serving as a director or officer of another corporation if that
interlock would violate section 8 of the Clayton Act. The Order
requires Exxon to comply with the provisions of section 8 of the
Clayton Act.
Fourth, the proposed Order contains provisions to ensure the
effectiveness of the relief, including obtaining information from
Exxon's officers and directors that they are complying with the Order;
requiring Exxon to submit a yearly compliance report containing
sufficient information and documentation to enable the Commission to
determine independently whether Exxon is in compliance with the Order;
and requiring that Exxon maintain specific written communications. The
proposed Order also requires Exxon to distribute the Order to each of
its current and any new officers and directors.
The purpose of this analysis is to facilitate public comment on the
Consent Agreement and proposed Order to aid the Commission in
determining whether it should make the proposed Order final. This
analysis is not an official interpretation of the proposed Order and
does not modify its terms in any way.
By direction of the Commission, Commissioners Holyoak and Ferguson
dissenting.
April J. Tabor,
Secretary.
Statement of Chair Lina M. Khan
A core principle that should underpin the Commission's antitrust
analysis is examining and understanding commercial realities. Sometimes
the evidence that is most probative of commercial realities is how
market participants act. Staff's investigation here uncovered troubling
evidence of Pioneer CEO Scott Sheffield's actions and communications,
which make clear that he believed and acted as if he could persuade his
rivals to join him in colluding to restrict output and raise prices.
When market actors speak and act as if they can collude, we should not
ignore this direct evidence or subordinate it to less direct indicators
of market realities.
The dissent does not dispute that Mr. Sheffield has tried to
facilitate a cartel, nor does it suggest he will stop doing so after
being elevated to the Exxon Board of Directors. Instead, the dissent
suggests that Mr. Sheffield is wasting
[[Page 42878]]
his time because he is unlikely to succeed.
We should be wary of dispensing with regulatory humility. Corporate
executives are not always credible narrators. But when corporate
executives' words or actions reveal, against their interests, a belief
that they can collude, we should generally believe them.
Concurring Statement of Commissioner Rebecca Kelly Slaughter
Today's complaint and consent decree are an important step forward
in merger investigations and enforcement. I'm very glad that we are
able, through this consent decree, to prevent the substantial lessening
of competition that would have occurred from one component of the
merger: elevating Scott Sheffield to the board of directors of Exxon.
This complaint and consent decree reflect what I have long believed
to be true: the management and business intentions of merging parties
should matter to our assessment of the likely effects of a merger on
competition. When a company agrees, as a condition of a merger, to
elevate one of the industry's notorious public and private advocates of
output coordination to its board, we can and should take that seriously
as a competitive effect of the merger. This principle applies not just
in oil and gas markets like the ones we assess today, but across the
American economy.\1\
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\1\ Indeed, it may be particularly relevant in pharmaceuticals.
The FTC has an entire division dedicated to investigation
anticompetititive conduct in healthcare markets with a particularly
strong enforcement track record in the pharmaceutical space. When
pharmaceutical companies that have a history of anticompetitive
conduct merge, I have long believed we should consider that history
in our assessment of the likely competitive effects of the merger.
See, e.g., Dissenting Statement of Commissioner Rebecca Kelly
Slaughter in the Matter of Bristol-Myers Squibb and Celgene (``We
must carefully consider the facts in each specific merger to
understand whether or how it may facilitate anticompetitive conduct,
and therefore be more likely to result in a substantial lessening of
competition.'') Dissenting Statement of Commissioner Rebecca Kelly
Slaughter In the Matter of Bristol-Myers Squibb and Celgene, (Nov.
15, 2019), <a href="http://www.ftc.gov/system/files/documents/public_statements/1554283/17_-_final_rks_bms-celgene_statement.pdf">http://www.ftc.gov/system/files/documents/public_statements/1554283/17_-_final_rks_bms-celgene_statement.pdf</a>.
This view has been echoed in the academic literature. See, Carrier,
Michael A. and Lindsay Cooley, Gwendolyn J., Prior Bad Acts and
Merger Review (October 19, 2022). 111 Georgetown Law Journal Online
106 (2023), <a href="http://ssrn.com/abstract=4252945">http://ssrn.com/abstract=4252945</a>.
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This is not to say that we should trust everything merging parties
say in their effort to get a merger through the review process. The
economic incentives of the merged firm continue to play a central role.
If we find reason to believe that the merged firm, acting on those
incentives, may substantially lessen competition, we should act.
Corporate executives may profess that they plan to continue to compete
as if those incentives don't exist. In that situation, enforcers must
be highly skeptical. The parties have every reason to want to present a
pro-competitive strategy to try to get their merger through. That is
why we rely on ordinary course documents and business evidence to give
us a clearer picture of how parties will behave. And when they openly
embrace anticompetitive strategies, that is when we should take notice.
I agree with my dissenting colleagues that another appropriate
response to the concerning statements around coordinated behavior
uncovered in this investigation would be to separately scrutinize them
as a potential antitrust violation. Today's complaint and consent
decree should not be seen as mutually exclusive with such a conduct
investigation. Conduct investigations--rightly--are not subject to the
strict statutory deadlines of merger investigations, and for a variety
of reasons tend to take much longer. The harms to competition
identified in the complaint are specific to this merger, and therefore
they are appropriate to address now, at the time of the merger.
Lastly, it's important to reiterate here that the FTC does not
approve mergers under any circumstances. This consent decree, like any
other consent decree, should not be seen as resolving all competitive
concerns this merger may present.\2\ Enforcers are always faced with
tradeoffs to weigh in our decisions. This consent decree will have an
important and meaningful impact on the market and competition. It is
worth doing now, whether or not further intervention may be warranted.
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\2\ This is especially true given that the merging parties often
have outsized control over the timing and timeline of FTC
investigations. To ensure that enforcers can adequately and
thoroughly investigate potentially unlawful mergers, lawmakers
should amend the HSR Act to extend statutory deadlines.
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Concurring Statement of Commissioner Alvaro M. Bedoya
The Sherman Act owes its existence to an oilman with a singular
talent for collusion.\1\ And we owe the Clayton Act, the grounds for
this suit, to a broad consensus that the courts had enfeebled the
Sherman Act by reading it in a manner far too favorable to industry.\2\
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\1\ See Gregory J. Werden, The Foundations Of Antitrust 3 (2020)
(``. . . without John D. Rockefeller and the Standard Oil Co., the
United States would not have had competition law until later, and
this field of the law would not be called 'antitrust'''); see
generally, id. at 3-16 (documenting Standard Oil's creation, growth,
and eventual dominance in the American oil industry).
\2\ See, e.g., Earl W. Kintner, Ed., Legislative History Of The
Federal Antitrust Laws and Related Statutes 989-997 (1978) (``Based
upon 24 years of practical experience under the Sherman Act,
Congress sought in the Clayton Act to remedy certain perceived
weaknesses in the existing law and to expand its coverage. . .
Shortly after the Supreme Court's announcement of its decision in
the Standard Oil case in 1911, pressure to strengthen the Sherman
Act revived and culminated initially in the introduction of
[competing bills]. . . The facts surrounding the drafting and
introduction of these proposals make clear that they constituted an
integrated and coordinated legislative effort to strengthen and make
more effective the existing antitrust law.'')
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This merger would have put an oilman of John Rockefeller's
persuasions on the board of a direct successor to Mr. Rockefeller's oil
company--which also happens to be the single largest company in the
American oil industry.\3\ Our colleagues raise a finger to contend that
``the merger does not place Mr. Sheffield on the board.'' I fail to see
how a written and executed ``AGREEMENT AND PLAN OF MERGER'' between the
companies that stipulates that Exxon ``shall take all necessary actions
to cause Scott D. Sheffield. . . to be appointed to [its] board of
directors. . . immediately following the Effective Time'' of the merger
somehow does not place Mr. Sheffield on that board as a result of the
merger.\4\
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\3\ Our History, ExxonMobil (Feb. 9, 2023), <a href="https://corporate.exxonmobil.com/who-we-are/our-global-organization/our-history">https://corporate.exxonmobil.com/who-we-are/our-global-organization/our-history</a> (``Over the past 140 years ExxonMobil has evolved from a
regional marketer of kerosene in the U.S. to one of the largest
publicly traded petroleum and petrochemical enterprises in the
world.''); id. (``1972--Jersey Standard officially changes its name
to Exxon Corporation.'').
\4\ See Pioneer Nat Res. Co., Exxon Mobil Corp., & SPQR, LLC,
Agreement and Plan of Merger Sec. 8.12(a), at 79 (Oct. 10, 2023).
It should also be noted that Exxon's filing to the Securities and
Exchange Commission includes Mr. Sheffield's appointment to the
board in the long list of financial and other consideration to be
provided by Exxon to Pioneer as part of the acquisition. See Exxon
Mobil Corp., Amendment no. 1 to FORM S-4 Registration Statement 54
(Dec. 22, 2023.)
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Under section 7 of the Clayton Act, we are asked to determine
whether we have reasonable grounds to believe that the effect of this
merger ``may be to substantially lessen competition'' ``in any line of
commerce or in any activity affecting commerce in any section of the
country.'' \5\ I respect my colleagues' opinion but fail to understand
how we can answer that question with anything other than a ``yes.''
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\5\ See 15 U.S.C. 18 (emphasis added).
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Joint Dissenting Statement of Commissioners Melissa Holyoak and Andrew
N. Ferguson
The Commission has issued a Complaint and Order against Exxon Mobil
Corporation (``Exxon'') on the
[[Page 42879]]
ground that the proposed acquisition of Pioneer Natural Resources
Company (``Pioneer'') would violate section 7 of the Clayton Act.\1\
The principal ground on which the Commission proceeds is that the
merger may substantially lessen competition because of the prospect
that Exxon's shareholders may elect Scott Sheffield--Pioneer's founder,
former CEO, and current board member--to Exxon's board of directors.
The Complaint alleges that Mr. Sheffield has made ``previous efforts to
organize tacit (and potentially express) coordination of capital
investment discipline and oil production levels.'' \2\ Mr. Sheffield
allegedly used both public statements threatening to punish companies
that expand output and private conversations and messages with OPEC
representatives where he implemented his ``long-running strategy to
coordinate output reductions.'' \3\ These accusations are extremely
troubling and warrant close scrutiny under the antitrust laws. To its
credit, Exxon intends to exclude Mr. Sheffield from serving on the
board of directors--a wise decision consistent with sound policy given
the severity of the allegations against him.
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\1\ 15. U.S.C. 18.
\2\ Compl. ] 22.
\3\ Compl. ] 6.
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But Exxon's consent to the entry of this order and its decision to
exclude Mr. Sheffield from its board does not answer the ultimate
question the Commission must answer before issuing a complaint: Whether
the Commission has reason to believe this transaction itself violates
section 7. The Commission's Complaint does not provide us reason to
believe that it does. The Complaint fails to articulate how the
``effect of [the] transaction may be substantially to lessen
competition.'' \4\ We fear instead that the Commission is leveraging
its merger enforcement authority to extract a consent from Exxon rather
than addressing the conduct of one misbehaving executive. We therefore
respectfully dissent.
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\4\ 15. U.S.C. 18.
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Antitrust enforcers have long recognized that a transaction which
increases the risk of coordination also increases the risk of a
substantial diminution of competition. Until recently, we considered
three factors in assessing the risk of increased coordination: whether
the transaction created ``(1) a significant increase in concentration,
leading to a moderately or highly concentrated market''; whether the
transaction involved ``(2) a market vulnerable to coordinated
conduct''; and whether we had ``(3) a credible basis for concluding the
transaction will enhance that vulnerability.'' \5\ The recently adopted
2023 Guidelines propose three ``primary factors'' for assessing the
increased risk of coordination--(1) the existence of a highly
concentrated market, (2) prior actual or attempted attempts to
coordinate, and (3) elimination of a maverick.\6\ No court to date has
endorsed these new factors. Even assuming they accurately summarize the
state of the law, they are not satisfied here.
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\5\ U.S. Dept. of Just. & Fed. Trade Comm'n, Horizontal Merger
Guidelines Sec. 7.1 (2010); see Fed. Trade Comm'n v. RAG-Stiftung,
436 F.Supp.3d 278, 313 (2020) (citing and quoting from section 7.1
of the 2010 Horizontal Merger Guidelines); New York v. Deutsche
Telekom AG, 439 F. Supp. 3d 179, 234 (S.D.N.Y. 2020) (similar).
\6\ 2023 Guidelines Sec. 2.3.A, at 8-9. The Guidelines also
propose six ``secondary factors,'' id. Sec. 2.3.B, at 9-10, but the
Complaint does not appear to rely on them.
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The Complaint is unclear on which of the three factors are present
here, but it focuses most on ``actual or attempted attempts to
coordinate.'' It alleges that ``Mr. Sheffield's history of attempting
to coordinate with other oil industry participants suggests that the
market here is susceptible to anticompetitive coordination.'' \7\ We do
not agree.
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\7\ Compl. ] 19.
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The 2023 Guidelines provide that ``attempts to coordinate'' are
relevant to the risk-of-coordination inquiry where ``firms representing
a substantial share in the relevant market appear to have previously
engaged in express or tacit coordination . . . .'' \8\ The Complaint
alleges only that a combined OPEC and OPEC+ ``account for over 50% of
global crude oil production.'' \9\ Importantly, it does not allege the
merging parties' market shares at all. As such, it fails to allege that
either Exxon or Pioneer represents part of any ``substantial share'' of
the market, and for good reason: the post-merger firm's share in the
alleged market will not be substantial. The concentration in this
market, and thus, the likelihood of successful coordination post-
merger, are virtually unchanged by the proposed acquisition.\10\
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\8\ 2023 Guidelines Sec. 2.3.A, at 9.
\9\ Compl. ] 21.
\10\ To be clear, we do not contend that every individual oil
producer is a meaningful constraint on coordination. The
Commission's Complaint is silent, however, on the existence or
sufficiency of any other firm to constrain the coordination the
consent purports to prevent with this remedy. For us, this omission
precludes reason to believe the proposed transaction may
substantially lessen competition. See Fed. Trade Comm'n v. PPG
Indus., Inc., 798 F.2d 1500, 1503 (D.C. Cir 1986) (``[W]here rivals
are few, firms will be able to coordinate their behavior, either by
overt collusion or implicit understanding, in order to restrict
output and achieve profits above competitive levels.''); see also
Fed. Trade Comm'n v. H.J. Heinz Co., 246 F.3d 708, 715 (2001).
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The Complaint also focuses on the fact that the merger would give
Mr. Sheffield ``a larger platform from which to advocate for greater
industry-wide coordination as well as decision-making input.'' \11\ Mr.
Sheffield's alleged prior conduct certainly raises serious concern and
warrants antitrust scrutiny. But the merger does not place Mr.
Sheffield on the board.\12\ That decision belongs to Exxon's
shareholders. The Commission acts today based only on the risk that the
shareholders might elect him to the board, and that his election might
give him a ``larger platform'' to coordinate--if indeed this market is
susceptible to coordination. We do not believe this alleged risk
presents a section 7 problem. Further, we are especially concerned with
the Complaint's focus on Sheffield's past conduct at Pioneer as an
indicator of Exxon's future actions, without any discussion of whether
Exxon has incentives to engage in the same behavior. Focusing on
individuals' conduct divorced from a firm's incentives could have
troubling ramifications for future enforcement actions.
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\11\ Compl. ] 44.
\12\ The agreement instead requires Exxon to propose Mr.
Sheffield for election to its board if he meets certain legal,
regulatory, and corporate governance criteria.
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The alleged conduct by Mr. Sheffield warrants scrutiny, but that
does not mean we have reason to believe the transaction violates
section 7. The Commission should not leverage its merger enforcement
authority--or any authority--the way it does today. We respectfully
dissent.
[FR Doc. 2024-10731 Filed 5-15-24; 8:45 am]
BILLING CODE 6750-01-P
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</html>Indexed from Federal Register on May 16, 2024.
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