Mergers and acquisitions are often critical to the strategic direction of a company. Antitrust, however, may be a perceived or real impediment or barrier to “getting the deal done” and can involve complicated regulatory filings and lengthy reviews and investigations. Delay can mean death for a transaction’s consummation. Moreover, arrangements short of the outright sale of assets or a business, such as joint ventures and other strategic collaborations, can require ongoing communication and cooperation between competitors – heightening antitrust risks.
Thompson Hine lawyers regularly counsel clients—including buyers, sellers, targets and financial institutions—on the antitrust implications of mergers, acquisitions and joint ventures. We assess and predict how investigating enforcers will view a particular deal in a particular industry, and counsel clients how to shape or negotiate each deal in light of likely antitrust risks. We determine what notifications need to be filed, while proactively examining exemptions from and other solutions to complex notification questions. For reportable deals, we handle premerger filings under the Hart-Scott-Rodino Act, and coordinate filings under the European Union Merger Control regulations and other foreign merger control laws. We represent clients in negotiations with the Department of Justice and the Federal Trade Commission on merger clearance issues, and, for transactions involving international assets, interact with foreign counsel on the necessary regulatory filings with competition authorities throughout the world. Now that there are more than 100 jurisdictions with antitrust review regimes, we recognize that the risk of antitrust delay or opposition is greater than ever for global businesses.
Our standard merger approach is to form a deep understanding of the clients’ business and strategy involved in the transaction. We use that knowledge, coupled with our studied understanding of the sometimes changing perspectives of government enforcers, to assess whether a proposed deal may draw extensive scrutiny, including a so-called “Second Request” or non-reportable deal investigation – an increasing risk, as demonstrated by statistics recently released by the Antitrust Division – and prepare an effective case for the transaction to proceed, minimizing such scrutiny. We manage the merger review process, rather than being managed by it. Where appropriate, we prepare presentations and economic evidence (sometimes even prior to the HSR filing), and position the company to respond quickly in the event of a full blown investigation. We move deals through effective presentations to government antitrust enforcement lawyers and economists and, if necessary, carefully negotiated consent decrees.
In addition, we counsel on integration planning and “gun-jumping” issues in M&A transactions so that clients can execute quickly to achieve their desired synergies as soon as prudent after the deal closes. For JVs or other “competitor collaborations,” we help clients develop and institute firewalls and other policies or processes to minimize risk and ensure that pro-competitive business conduct does not veer off in problematic directions.
We also represent non-parties in investigated deals. We assist them when they are called upon to give evidence or be a witness in an investigation. We monitor non-parties’ interests and look for business opportunities when merging parties choose to divest assets or otherwise enter in negotiated settlements with investigating bodies. We give arbitrage advice to investor clients who seek to understand how a particular deal will fare if investigated by competition authorities.
Listed below are representative antitrust matters in which our partners have participated.
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