The ACCC is likely to seek to discontinue its proceedings in the Federal Court in relation to Virtus Health’s (Virtus) proposed acquisition of Adora Fertility (Adora) from Healius, after Virtus announced today that it has decided not to proceed with the acquisition.
Virtus originally informed the ACCC of its intention to acquire Adora in August 2021 but later advised that it would complete the transaction even though the ACCC had not completed its informal review of competition issues raised by the acquisition.
On 25 October 2021, the Federal Court granted the ACCC an interlocutory injunction to restrain Virtus Health from completing its acquisition of Adora Fertility until proceedings brought by the ACCC were finalised, or the Court made other orders.
“This was an important decision and sent a powerful message to potential merger parties in Australia,” ACCC Chair Rod Sims said.
“The ACCC will not hesitate to take appropriate action in the Federal Court to prevent completion of a transaction if it is concerned that the transaction is likely to substantially lessen competition. Proposing to proceed with a transaction without informal clearance from the ACCC, as Virtus did in this matter, unnecessarily exposes merger parties to significant legal and commercial risks.”
The ACCC was concerned that the acquisition would increase Virtus’ already significant market share in Brisbane and Melbourne. There were also strong indications that Adora has been a vigorous competitor, driving down prices for IVF services through a low-cost model.
“Competition is vital for protecting consumer access and choice. Fertility treatment is already a costly and difficult process for would-be parents. When there are fewer IVF providers, there is a significant risk the cost of IVF treatment will increase, adding further to the financial impact on consumers,” Mr Sims said.
Background
Virtus and Adora are both providers of IVF services. Both companies operate fertility clinics in Brisbane, Sydney and Melbourne. Virtus notified the ACCC of its intention to acquire Adora Fertility on 30 August 2021 and provided very limited information to the ACCC. Within a short time after Virtus provided its courtesy notification to the ACCC, Virtus was advised that a public review would be required. This was commenced on 21 September once we had received the information from Virtus necessary to conduct the review. In early October, the merger parties notified the ACCC that the parties proposed to complete the transaction on Friday, 15 October 2021, even though the ACCC’s review would not have been completed.
On 13 October, the ACCC commenced proceedings and sought an urgent injunction to restrain Virtus from acquiring Adora Fertility and three day hospitals from Healius.
On 14 October, the Federal Court granted the ACCC an interim injunction which prevented the transaction from proceeding as planned on 15 October. The interim injunction was extended on 19 October after the hearing of the ACCC’s application for an interlocutory injunction. On 25 October, the Court granted an interlocutory injunction.
Note
Section 50 of the Competition and Consumer Act prohibits mergers or acquisition that will have the effect, or be likely to have the effect, of substantially lessening competition in any market.
Under section 80 of the Competition and Consumer Act, the ACCC may seek injunctive relief from the Federal Court to prevent a merger from proceeding.
