Milbank LLP successfully secured unanimous approval from the Federal Trade Commission (“FTC,” “The Commission”) for client Sartorius Stedim Biotech S.A.’s (“Sartorius”) acquisition of Novasep Process SAS’s (“Novasep”) chromatography equipment business. This groundbreaking victory makes Milbank the first law firm to obtain prior approval from the FTC for an acquiror under the Biden Administration, which, in a significant shift, requires parties to affirmatively demonstrate that a transaction does not pose competitive concerns.
“As lead counsel on the first prior approval case to be decided by the current Commission, we were operating in largely uncharted waters. Working constructively with the FTC team, we were able to address their questions and concerns through proactive advocacy, documentary evidence and economic analysis. The process worked because the FTC was able to conduct a thorough investigation while giving Sartorius and Novasep the opportunity to demonstrate the procompetitive benefits of the transaction,” said Milbank partner Fiona A. Schaeffer.
The prior approval order arose from Sartorius’s acquisition of various assets to remedy Danaher Corporation’s 2020 acquisition of GE Biopharma. At that time, the FTC believed that one of the divested Danaher products, an intensified chromatography system (BioSMB) was a direct competitor of Novasep’s product (BioSC). Milbank represented Sartorius in its successful acquisition of the Danaher/GE divestiture assets, which required approval from the FTC, the European Commission and other jurisdictions around the globe.
As Ms. Schaeffer explained: “We had a significant hurdle to overcome in this case because the Commission’s starting point (from its investigation of the Danaher/GE transaction) was that the merging parties were two of only three meaningful suppliers in the nascent market for intensified chromatography equipment. We were able to present strong evidence that the competitive landscape had evolved and that the merger would stimulate innovation and competition, benefitting biopharma customers and patients by increasing the productivity and efficiency of biopharma vaccine and drug manufacturing.”
The FTC Commission unanimously approved the transaction on January 31, 2022. Milbank also secured antitrust approval in Austria and the transaction closed on February 7, 2022.
The Milbank team advising Sartorius included partners Fiona A. Schaeffer, Alexander Rinne, special counsel Andrew S. Wellin and associates Moritz Lichtenegger, Emily Werkmann and Lena K. Bruce.
