They said as well that a majority of the commission is not yet on board with the transaction.
The decision “to close under these circumstances is highly unusual, and we are extremely troubled by it,” the FTC members said, adding: “The parties have closed their transaction at their own risk.”
In a response, released late Friday, Marathon Petroleum leaders said they have worked with the FTC and will continue to do so.
Marathon said that a timing agreement prefatory to the closing of the sale elapsed Thursday night and early Friday, “with the FTC electing to take no action on the transaction. Upon satisfaction of all conditions to close, the parties finalized the transaction this (Friday) morning.”
Marathon also noted the presence of dueling statements from FTC members Friday, indicating a lack of agreement on the sale.
One issue preventing consensus at the moment may be a vacant seat on the commission. The FTC has five seats, with one seat currently vacant. President Biden has nominated Lina Khan to take that seat.
“In the hours after the closing, two sets of FTC commissioners elected to issue separate statements both stating publicly that the FTC had indeed taken no action on the transaction during the HSR (Hart-Scott-Rodino Antitrust Improvements) Act waiting period,” Marathon said. “MPC supports 7-Eleven’s position, released earlier today, that the companies were legally allowed to close the Speedway transaction today and statements or implications to the contrary are false.”
“To be clear, 7-Eleven was legally allowed to close on the Speedway transaction today and statements or implications to the contrary are false,” 7-Eleven Inc. said in its own statement, also released late Friday.
For its part, 7-Eleven said FTC commissioners Slaughter and Chopra, 7-Eleven and the FTC staff entered into a “timing agreement” permitting 7-Eleven to close the sale.
7-Eleven said as well there was a settlement agreement reached at the end of April that “resolved all of the competitive concerns that the commissioners reference in their statement by having 7-Eleven divest 293 fuel outlets.”
“We were informed that the FTC staff, including leaders in the Bureau of Competition, recommended that the FTC Commissioners approve that settlement,” 7-Eleven also said. “In other words, a settlement resolving the purportedly illegal aspects of the 7-Eleven/Speedway transaction has already been negotiated and the Commissioners have already reviewed it.”
A message seeking comment was left with an FTC spokeswoman. Marathon spokesman Jamal Kheiry said company representatives were not available for interviews, but he offered to take written questions.
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