TEXAS BUSINESS LITIGATION JOURNAL Antitrust Review 2007 Energy - PDF document

TEXAS BUSINESS LITIGATION JOURNAL Antitrust Review 2007 Energy Mergers Sweepstakes FALL 2007 • Volume 29 • Number 4

TABLE • OF • CONTENTS SECTION OFFICERS and COUNCIL MEMBERS • Chair • Randy D. Gordon 1601 Elm Street, Suite 3000 Letter from the Section Chair. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Dallas, Texas 75201 (214) 999-4527 (214) 999-3527 (Fax) • Chair-Elect • From the Editor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 William M. Katz, Jr. 1700 Pacific Avenue, Suite 3300 Dallas Texas 75201 (214) 969-1330 (214) 969-1751 (Fax) Developments • Secretary-Treasurer • Leslie S. Hyman Antitrust Review 2007 112 East Pecan Street, Suite 1800 San Antonio, Texas 78205 by Leslie Sara Hyman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 (210) 554-5500 (210) 226-8395 (Fax) • Council Members (terms expire 2010) • Charles W. Schwartz, Houston The FTC’s 2007 Oil Industry Merger Challenges: Bill Katz, Dallas Randy D. Gordon, Dallas Michael D. Rubenstein, Houston Another Year of “Special Vigilance” William Frank Carroll, Dallas Thomas R. Jackson, Dallas by Bruce McDonald . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 J. Bruce McDonald, Houston • Council Members (terms expire 2009) • Todd Murray, Dallas Leslie Sara Hyman, San Antonio Luck of the Draw: Avoiding Thomas Malone, Houston Mark K. Glasser, Houston Paul Genender, Dallas the Traps of Running a Sweepstakes Contest Carrie Huff, Dallas Mark Bayer, Dallas by Tom Van Arsdel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 • Council Members (terms expire 2008) • Jim Elliott, Dallas M. Sean Royall, Dallas Michael J. Biles, Austin Section Publications Rick Milvenan, Austin William R. Pakalka, Houston Wallis Hampton, Houston Monograph Alert John Thomas Scott, Dallas by Gregory S.C. Huffman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 • Ex-Officio Council Members • Thomas B. Carter, Dallas Duncan Currie, Dallas Mark Tobey, Austin • Section Past Chairs • Stephen D. Susman - 1976-77 James E. Coleman, Jr. - 1977-78 J. Burleson Smith - 1978-79 B. J. Bradshaw - 1979-80 Charles T. Newton - 1980-81 Jack N. Price - 1981-82 Robin P . Hartmann - 1982-83 Gary V. McGowan - 1983-84 Keith E. Kaiser - 1984-85 Barry F. McNeil - 1985-86 Richard N. Carrell - 1986-87 W. Royal Furgeson, Jr. - 1987-88 Ernest R. Higginbotham - 1988-89 Max Hendrick, III - 1989-90 A. Michael Ferrill - 1990-91 Gregory S. C. Huffman - 1991-92 Layne E. Kruse - 1992-93 Allene D. Evans - 1993-94 Robert M. Cohan - 1994-95 Kenneth E. McNeil - 1995-96 Jorge C. Rangel - 1996-97 Karen B. Willcutts - 1997-98 Rufus W. Oliver, III - 1998-99 Karl S. Stern - 1999-2000 N. Henry Simpson III - 2000-01 Curtis L. Frisbie, Jr. - 2001-02 James K. Spivey - 2002-03 Lin Hughes - 2003-04 Kathleen M. LaValle - 2004-05 Larry A. Gaydos - 2005-06 Justice Jim Moseley - 2006-07 • Monograph Editor • Gregory S.C. Huffman, Dallas • Journal Editor • A. Michael Ferrill, San Antonio COVER: “High and Dry,” Honorable Mention, 2007 Texas Tech International • Contributing Editors • Leslie Hyman, San Antonio Cultural Center juried competition, Gerard G. Pecht, Houston photograph by Larry Gustafson, Dallas. William M. Katz, Jr., Dallas Randy Gordon, Dallas Todd Murray, Dallas Peter A. Stokes Wallis Hampton, Houston Samuel E. Joyner, Dallas Paul Genender, Dallas Matt Rinaldi, Dallas Jay Nelson, Houston Barry Golden, Dallas Nicholas Peters, Dallas • Webmaster • Todd Murray, Dallas Publication Layout - State Bar of Texas Graphics Department

• DEVELOPMENTS • The FTC’s 2007 Oil Industry Merger Challenges: Another Year of “Special Vigilance” 1 By: J. Bruce McDonald Petroleum markets in the U.S. are intensely competitive. You In addition to Western and Giant, a number of other refiners would think otherwise, reviewing the antitrust enforcement activities supply gasoline to Northern New Mexico. Holly Corporation ships of the Federal Trade Commission (“FTC”). The FTC’s oil industry gasoline through several pipelines from its refinery in southeast New merger challenges historically have been aggressive, holding these Mexico. ConocoPhillips and Valero Energy both send gasoline to industries to a higher standard than in other markets. An effort to Albuquerque from their refineries in the Texas Panhandle. Alon avoid underenforcement in a “critical” industry, or to dodge the ships gasoline to Albuquerque from its Big Spring, Texas, refinery. threat of expansive legislation, may help explain this pattern. In 2007, Product from Gulf Coast refiners is delivered to Albuquerque by truck. the FTC has kept up its enthusiastic efforts against petroleum market mergers, so far with one loss, one loss with a good chance for appellate In April 2007, the FTC filed an action in the District of New reversal, and one consent order. Mexico, 3 seeking a preliminary injunction of the merger under FTC Act § 13(b). 4 The FTC alleged that the merger would lessen competi- Western Refining / Giant Industries tion in the bulk supply of gasoline to northern new Mexico. The FTC Complaint recognized that northern New Mexico had seven “signif- The leading recent example of the FTC’s intensive enforcement icant” bulk suppliers. And the FTC alleged that six (“only six”) of the against energy mergers is the agency’s unsuccessful challenge refiners “are currently capable of responding” to a decrease in supply to northern New Mexico. 5 The FTC even acknowledged that Holly, to the combination of Western Refining and Giant Industries, two independent oil refiners. 2 In August 2006, Western agreed to acquire ConocoPhillips, and Valero had large, nearby refineries connected to Giant in a $1.4 billion transaction that would make Western the pipelines with significant unused capacity running to Albuquerque. 6 country’s fourth largest, independent, publicly-traded refiner and marketer. The FTC staff commenced an investigation and identified In most markets, a “6 to 5” merger would hardly get a second glance. 7 But here the FTC identified peculiar local market facts that as the critical overlap both refiners’ supplying gasoline to northern New Mexico, the area around Albuquerque. led it instead to challenge the merger. (1) Giant was a maverick and, with expanded refinery output, Giant would increase the supply of Headquartered in El Paso, Texas, Western refines crude oil and gasoline to Albuquerque, bringing lower prices. (2) To avoid losses markets refined products in the Southwest. Western owns a refinery caused by lower prices, Western would divert Giant’s new supply in El Paso, which supplies refined products to northern New Mexico away to other markets. (3) These changes in output by Giant and and West Texas and parts of Arizona and northern Mexico. The supply Western would not be countered by other suppliers; the historical to northern New Mexico travels through The Plains Pipeline from “limited supply responsiveness” of the other suppliers indicated they El Paso to Albuquerque. would not respond to Giant’s increasing supply by backing out their own supply, nor would they replace supply if Western diverted gasoline Headquartered in Scottsdale, Arizona, Giant had operations in away from northern New Mexico, the FTC alleged. the Southwest and mid-Atlantic. Giant owned two New Mexico refineries, from which it trucked gasoline to points in Arizona, The parties battled over the FTC’s assertions in a five-day southwest Colorado, and New Mexico, including Albuquerque. Giant preliminary injunction hearing in Albuquerque in May 2007. The parties presented six fact witnesses and three experts. 8 Three weeks also owned wholesale and retail outlets in New Mexico and elsewhere in the Southwest. Giant’s refineries had been running below capacity, later, the court announced its decision, finding in favor of the because it had been unable to acquire enough of the local sweet crude defendants on the key issues and rejecting the FTC challenge. that was its primary feedstock. However, Giant recently had purchased a pipeline through which it would be able to obtain more feedstock, First, the court questioned the FTC premise that premerger and Giant predicted increasing its refineries’ output in 2007. Giant would have increased total supply to bring lower prices. The Fall • 2007 11