Merger Control

This Practice Note discusses the antitrust agencies' enforcement actions against transacting parties engaging in conduct before closing that violates the Hart-Scott-Rodino (HSR) Act and other antitrust laws, known as gun-jumping. Gun-jumping violations include the transfer of beneficial ownership of the assets or equity to be acquired before closing as well as other illegal pre-closing conduct.

This Note discusses the regulatory and antitrust aspects of mergers and acquisitions (M&A) in the banking industry.  It analyzes the various statutes covering bank M&A transactions and the regulatory agencies responsible for approving them.  It includes a full discussion of the factors taken into consideration (including anti-competitive and other banking-specific factors) when applying for approval of a bank M&A transaction.

The European Commission's DG Competition is responsible for dealing with transactions which fall within the scope of the EU Merger Regulation. This Practice note considers the strategic and practical issues relevant when dealing with the Commission in relation to the notification of merger cases.

This Practice note considers the potential application of competition law to a share purchase transaction; in particular whether the transaction as a whole is subject to UK or EU merger control, and whether certain restrictions that are generally entered into in connection with such transactions (such as non-compete covenants, supply agreements and licences of intellectual property rights) are subject to additional regulatory scrutiny and control. Following a consultation in March 2011, the government has announced its decision on proposals to reform the UK competition regime. The government has decided to establish a new single Competition and Markets Authority to replace the OFT and Competition Commission.  The government has also decided on various, largely procedural changes to strengthen the mergers, markets and antitrust enforcement regimes. For further information see Government decisions on establishment of Competition and Markets Authority and reform of UK competition regime and Enterprise and Regulatory Reform Bill 2012-13: implementation of competition reforms.

A Practice Note discussing transactions that are not reportable under the Hart-Scott-Rodino (HSR) Act. Merger enforcement of consummated deals continues to increase but it is difficult to focus clients on antitrust risks of deals that are not reportable under the HSR Act. This Note offers both client management suggestions and strategies for dealing with non-HSR reportable transactions.

This Note explains how to determine whether a transaction is reportable under the Hart-Scott-Rodino Act. It sets out the HSR threshold levels and explains how to determine whether a transaction meets the size-of-person and size-of-transaction tests. This Note also offers guidance on applying aggregation principles under the HSR rules and describes certain potentially reportable transactions that may be easily overlooked, such as back-end and secondary acquisitions. 

This Note provides an overview of how the US federal antitrust agencies analyze mergers, acquisitions and joint ventures. It principally considers the agencies' approach to analyzing transactions involving competitors, but it also looks briefly at particular considerations relating to other types of transactions. This Note reflects the release of the 2010 Horizontal Merger Guidelines.

This note explains the principles, including practical examples, of how to conduct a conversion from a national currency into the euro for the purposes of applying the threshold tests in the EU Merger Regulation.

This Note discusses violations of the Hart-Scott-Rodino Act for failure to submit documents that were responsive to Item 4(c) of the HSR form. 

This Note discusses ways to counsel clients on the creation of 4(c) and 4(d) documents submitted to the FTC and DOJ for their review during the Hart-Scott-Rodino (HSR) merger review process.  It also explains the significance of 4(c) and 4(d) documents and the potential liabilities for not filing all of these documents.  Additionally, this Note provides strategies for searching for, selecting and preparing 4(c) and 4(d) documents for filing with the HSR form. 

A compilation of the Federal Trade Commission Premerger Notification Office's (PNO) informal staff opinions since 2011 relating to Hart-Scott-Rodino (HSR) form Item 4(c), updated quarterly.

A compilation of the Federal Trade Commission's (FTC) Premerger Notification Office's (PNO) informal staff opinions since 2011 relating to Hart-Scott-Rodino (HSR) Rules 801.13, 801.14 and 801.15, updated quarterly.

A compilation of the Federal Trade Commission Premerger Notification Office's informal staff interpretations since 2011, relating to Item 5 of the Hart-Scott-Rodino (HSR) form, updated quarterly.

A compilation of the Federal Trade Commission Premerger Notification Office's informal staff opinions since 2011 relating to Hart-Scott-Rodino (HSR) Rule 802.4, updated quarterly.

A compilation of the Federal Trade Commission (FTC) Premerger Notification Office's (PNO) informal staff opinions since 2011 relating to Hart-Scott-Rodino (HSR) Rule 801.10 on valuing the size-of-transaction, updated quarterly.

This Practice note considers the merger control provisions of the EEA Agreement and their interaction with the EU Merger Regulation. It explains the relevant supra-national jurisdictional and procedural rules that apply when a merger involves parties with activities in Iceland, Liechtenstein and Norway, and, in particular, the practical considerations that apply when the merger could also fall within the scope of the EU Merger Regulation.

This Note provides an overview of the types of remedies the federal antitrust agencies use to preserve competition post-merger, specific remedy provisions and how the agencies and the merging parties negotiate the remedies.

This Practice note considers the merger control regime for the assessment of mergers between water companies in England and Wales under the Water Industry Act 1991, as amended by the Enterprise Act 2002. It outlines the scope of the special merger control regime, notes the areas in which the assessment procedures differ from those applied to standard merger cases, considers the form and application of the substantive assessment, and reviews the implementation of appropriate remedies.

This Practice Note explains how to prepare a Hart-Scott-Rodino Act (HSR Act) Notification and Report Form (HSR form) on behalf of a buyer who must report a transaction under the HSR Act.

Customers, competitors and other third parties opposed to a potential transaction in their industry can take proactive steps to challenge the transaction, such as encouraging the investigating federal antitrust agency to block it, filing a private civil suit or even lobbying Congress.

A description of the remedies commonly available to a seller when an acquisition fails to close because of the buyer's breach or because of a financing failure. In particular, this Note describes the purposes, legal and business considerations of reverse break-up fees and specific performance.

The European Commission has power under the EU Merger Regulation to vet major cross-border mergers and acquisitions, and to prohibit them when they are incompatible with the internal market. This Practice note considers the scope and application of the Merger Regulation in relation to mergers and acquisitions. (Joint ventures are considered separately in the Practice note, EUJoint ventures).

Joint ventures encompass a broad range of commercial operations, ranging from fully-fledged merger-like operations to co-operation limited to particular functions, such as production, distribution or research and development. This Practice note provides an understanding of the principles of EU competition law applicable to joint ventures, as an aid to defining whether EU or UK competition law (or both) apply to any particular arrangement. In the UK, it examines the treatment of joint ventures both as a merger under the Enterprise Act 2002 and as a Chapter I agreement under the Competition Act 1998.

A discussion of employee provisions in consent decrees settling federal antitrust investigations of mergers and acquisitions. This article includes links to PLC What's Market summaries of recent federal merger consent decrees.