Photo of Robert A. Lipstein

Robert A. Lipstein is a senior partner in the firm’s Antitrust; International Investment, Trade and Arbitration (ITA); and Intellectual Property groups. He is also co-chair of the Antitrust Group and chair of the ITA Group Steering Committee. Rob counsels clients on all aspects of antitrust and trade regulation issues, with particular expertise on mergers and acquisitions, including pre-merger notification and pre-merger integration planning procedures; product distribution; and the interaction of antitrust and intellectual property laws. He regularly counsels and represents clients before the FTC and the Antitrust Division of the DOJ regarding mergers, acquisitions, joint ventures, competitor collaborations, and compliance with the Hart-Scott-Rodino Act. With twenty-five years of trademark and copyright prosecution and litigation experience, Rob also assists clients to protect their valuable intellectual property rights, and to enforce those rights against misuse, particularly on the Internet. He represents clients in antidumping and countervailing duty investigations and reviews before the Department of Commerce and the International Trade Commission, as well as the Court of International Trade and the Court of Appeals for the Federal Circuit.

The issue:

Simon Property Group recently made news by bidding to make two big acquisitions. In December, it agreed to pay $2.33 billion (including debt) to acquire Prime Outlets from Lightstone Group. More recently, it bid $10 billion to acquire its biggest rival, General Growth Properties, which is currently in bankruptcy proceedings. Simon’s moves have attracted the attention of the FTC, which has already reached out to retailers for input on the potential mergers.

What you need to know:
In analyzing potential mergers, the FTC focuses on the impact of the transaction on customers; fewer competitors may mean less competition and higher prices. In the case of the potential Simon acquisitions, the FTC will be interested in the impact on tenants, including whether the proposed mergers will affect the options available to tenants and rents charged. As part of its inquiry, the FTC is likely to reach out to key retail tenants that may be affected by the mergers. In fact, the FTC has already contacted key retailers that may be affected by the Prime Outlets merger. The FTC will likely ask retailers what alternatives they have to the relevant shopping centers, whether retailers are concerned about the proposed transactions, and whether the merging parties have market power (i.e., the power to raise rents directly, or through reducing landlord support for tenant improvements).

Continue Reading Mall Mergers: When the FTC Comes Calling