Merger control can affect many different types of transactions including straightforward equity acquisitions, asset-based transfers, joint ventures, minority acquisitions and even certain licensing and outsourcing arrangements. It is critical for companies to identify, early on in the transaction process, any required merger filings and any antitrust risk which may result in an authority prohibiting the transaction or requiring divestments or other remedies. Even in transactions which raise no antitrust issues, merger control can be a significant delaying factor in the deal timeline. In an environment where many jurisdictions maintain different jurisdictional thresholds, procedural rules and substantive antitrust standards, identifying required merger filings and securing timely approvals is a significant challenge. Beyond the mechanics of preparing and submitting filings, companies need to take a nuanced approach to complex questions of risk assessment which frequently entail finely-balanced judgment calls.
Among the many areas where we assist our clients in navigating merger control are:
- Identifying jurisdictions globally where a transaction is notifiable, including consideration of the merits of pursuing or deciding against a filing in certain jurisdictions, based on a risk assessment approach
- Drafting the language in transaction documentation in a way which reflects the need to balance buyer/seller risks and obligations, filing requirements, possible break-up and reverse break-up fees, preservation of the value of target assets in the event that remedies may be required and preservation of the value of the target pre-closing without infringing rules on gun jumping
- Handling information requests and putting in place the most efficient internal structure in order to be able to respond quickly and fully to agency data requests
- Coordinating the work of local counsel in jurisdictions where we do not have offices to ensure efficiency in the process, streamlining of information requests, avoiding duplication of work and ensuring consistency in approach across multiple jurisdictions
- Engaging on a pro-active basis with reviewing agencies during the merger review period so that the parties ensure as smooth a review as possible and can anticipate agencies’ likely reactions and next steps
- In more complex transactions, identifying potential remedies at as early a stage as possible in order to be able to deal strategically with the demands of other parties and with concerns raised by reviewing agencies
- Putting in place appropriate transition-planning arrangements whereby companies avoid opening themselves up to the accusation that they have engaged in gun jumping activities
- Challenging transactions where the result of a merger would adversely affect a company’s ability to compete in a market and securing antitrust authorities’ approval for companies to purchase divested businesses of the merging parties
We are proud to have been involved in securing clearances for our clients on many M&A transactions in the EU and across the world. Our lawyers have obtained worldwide clearance of hundreds of transactions over the years, including many complex matters that were presumed anticompetitive in multiple jurisdictions due to high market shares.
Our fully-integrated antitrust practice with lawyers in Brussels and Washington gives us breadth and depth to handle all of our clients’ merger control needs. This permits us to offer insightful and strategic guidance at every stage of the transactional process. We have decades of combined experience in representing clients in EU merger control proceedings including in complex transactions involving in-depth investigations and remedies. In addition, our lawyers have conducted hundreds of multijurisdictional analyses and have supervised, managed and obtained merger clearances in numerous jurisdictions, including jurisdictions as diverse as China, Kazakhstan, Germany, Ukraine and Cyprus.
Many of our lawyers have worked for competition agencies - including the U.S. Department of Justice and Federal Trade Commission - and we frequently interact with senior officials of competition agencies around the world through international organizations such as the OECD and the International Competition Network. This interaction and range of contacts gives us an extra facet in our merger control offering: insight into what the merger control enforcers and policymakers are thinking and an understanding of how merger control rules and enforcement are likely to change over the coming months and years.
GCR Insight Europe, Middle East and Africa Antitrust Review 2020
Competition Law Insight, Volume 17, Issue 8
Competition Law Insight - Volume 16, Issue 11
Competition Law Insight, Volume 17, Issue 1
Paul Lugard, Partner Baker Botts will be speaking on Day 2, 22 November at 16:40 on Interactions Between IP and Competition Law.