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Our antitrust and mergers and acquisitions clearance team has significant experience in providing notification of transactions to, and obtaining clearance from, the U.S. Department of Justice and the U.S. Federal Trade Commission (FTC). Our attorneys have represented some of the world's largest companies as buyers and sellers, as well as numerous interested and concerned parties before U.S. federal and state antitrust enforcement agencies and European competition authorities. Our team has successfully represented clients alleged to have failed to comply with the merger notification and waiting period requirements of the HSR Act (so-called “failure-to-file” investigations). The team lead, Bilal Sayyed, has acted as an expert witness in litigation alleging a party failed to comply with the HSR Act’s notification and waiting period requirements.
Our team also has experience in representing clients before Defense Department officials who work closely with the U.S. antitrust agencies to evaluate the competitive impact of transactions in defense markets, and in defending or reviewing transactions at other regulatory agencies, including the Federal Communications Commission, the Federal Energy Regulatory Commission, the federal banking agencies, the Department of Transportation and before State Attorneys General offices.
Our team works closely with our clients, our colleagues, and, where appropriate, respected local counsel, through every part of the antitrust review process, including:
- we analyze, negotiate and structure derivative instruments and related contracts to obtain the economic benefits of share ownership while waiting for HSR Act merger-notification clearance;
- analyzing substantive antitrust and competition risk associated with the transaction;
- negotiating and drafting antitrust and regulatory covenants for the transaction agreement;
- allocating antitrust risk associated with the transaction;
- diligence and integration planning;
- identifying potential director or officer “interlocks” that may arise from an acquisition of the target company, its minority investments, or with respect to any potential new board members or board appointed officers of the surviving entity;
- analyzing worldwide merger notification requirements and submitting required and, where warranted, voluntary notification filings;
- pre- and post-merger notification advocacy with the relevant antitrust and competition authorities in support of the transaction;
- compliance with antitrust laws during the transaction’s pre-clearance and pre-consummation periods (“gun-jumping” concerns);
- collecting, analyzing and submitting documents and data responsive to “requests for additional information” and in response to EC Phase I or Phase II two investigations;
- working with the client’s business team, senior leadership, and economic experts to explain, advocate for, and defend the transaction;
- crafting, proposing and defending (where necessary) remedies – divestiture or conduct proposals – to address the antitrust agencies’ competitive concerns arising from a transaction; and,
- where necessary, going to court to defend the transaction.
Our antitrust and merger and acquisitions clearance team represents parties who may be harmed by a merger, acquisition, or joint venture and notifies the appropriate antitrust and competition authorities of transactions that may raise competitive concerns, identifies the manner in which that harm may develop, and advocates for agency action that protects our clients and their customers. We also help our clients respond to information requests (civil investigative demands, subpoenas duces tecum) as third parties to a government merger (or non-merger) investigation.
In addition to helping our clients navigate the clearance process with antitrust and competition authorities, our team has specialized experience in assisting with regulatory reviews and approvals for other regulatory regimes, including the Committee on Foreign Investment in the United States (CFIUS).
Our team has extensive experience representing parties as buyers of assets or businesses that merging parties may be required to divest in order to obtain merger clearance, advocating on behalf of our client to the merging parties and antitrust agencies that our client is a suitable buyer to operate the assets post-divestiture.
