Barbara T. Sicalides Quoted in The Deal Pipeline Article, 'Merging Parties Still on the Hook if a Deal Might Eliminate a New Entrant'
Barbara T. Sicalides, Pepper partner and head of the Antitrust Section of the firm's Commercial Litigation Practice Group, was quoted in the October 9, 2015 The Deal Pipeline article, "Merging Parties Still on the Hook if a Deal Might Eliminate a New Entrant."
Barbara Sicalides, head of the antitrust section at Pepper Hamilton LLP's commercial litigation practice, said that Polster's ruling also lays out a useful test merging parties can use to predict whether merger may run afoul
of the potential entrant doctrine. He said if the entrant's business plan is financially viable and if the entry plan has been approved by the company's board, regulators are justified in declaring that company is truly
a potential entrant to market.
The fact that Synergy on its own decided its plan to roll out X-ray services was not financially viable and that its board had not given final approval of the project were key factors in demonstrating that Synergy was not likely
to make a major foray into the U.S., she said.
She cautioned, however, that meeting just one prong of that test might not have protected the companies from the FTC's allegations. "It's dangerous to look at just one step of that test as proof that a company wasn't
planning to enter the market. If the parties' effort show a plan is financially viable and that there's customer interest, the fact that the board hadn't approved the project might not be a determining factor in showing
they weren't close to entry," Sicalides said.
Content contributed by attorneys of Troutman Sanders LLP and Pepper Hamilton LLP prior to April 1, 2020, is included here, together with content contributed by attorneys of Troutman Pepper (the combined entity) after the merger date.