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By Liz Crampton
A Delaware federal judge June 21 ruled in favor of the Justice Department in its antitrust lawsuit against two competing nuclear waste disposal companies, handing the antitrust division its first court victory of the Trump administration ( United States of America v. Energy Solutions, Inc. et al , D. Del., No. 1:16-cv-01056-SLR, 6/21/17 ).
U.S. District Judge for the District of Delaware Sue Robinson sided with the DOJ in its effort to keep EnergySolutions Inc. from buying Waste Control Specialists LLC, two rival companies that dispose of nuclear waste for nuclear power plants, hospitals, and research facilities. She issued a one-page judgment for the government and filed an opinion under seal, which will be lifted once the parties agree to redactions of confidential business information.
At stake in the case was the “failing firm” defense, a challenging legal argument that the companies offered as a reason to combine. Without the deal, they argued, Waste Control Specialists would go out of business. The court’s decision will give clarity to merging companies seeking antitrust approval who that say financial ruin is inevitable for one of them without a deal.
The department sued last year to block the proposed $367 million merger of the two companies, arguing that combining the only two licensed commercial low-level radioactive waste disposal facilities for most of the country would lead to higher prices and lower quality service. The DOJ said the proposed deal comes at a “critical time” in the sector because nuclear reactor decommissioning projects that are worth billions will be awarded in coming years.
Judge Robinson has presided over 10 other antitrust cases, according to Bloomberg Law’s Litigation Analytics, and four of them have been reversed by the U.S. Court of Appeals for the Third Circuit. None of them involved the failing firm defense.
“Today’s decision protects competition in an industry that is incredibly difficult to enter,” Andrew Finch, acting head of the antitrust division, said in a statement. “While EnergySolutions’ preference was to buy its main rival rather than continue to compete to win business, today’s decision ensures that customers will benefit from the competitive process.”
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