Mergers, acquisitions, joint ventures, and exclusive license transfers can enable companies to reach their strategic goals. Antitrust clearances may affect the transaction's timing and valuation, as well as any bidding process. Promptly obtaining required clearances is often an essential step toward capturing the deal's full value.
The risk of antitrust delay or opposition is greater than ever for global businesses. An increasing number of the more than 90 jurisdictions with antitrust review regimes require pre-closing review. Each jurisdiction's review process has different rules, notification requirements, and timelines. To get the deal done, parties must develop a global strategy to minimize the risk that an antitrust agency will delay or seek to block the deal.
Why MoFo?
We have been trusted for decades by some of the world's most prominent businesses in a range of industries to guide them through the maze of multi-jurisdictional merger review. We work with clients in virtually every industry sector, ranging from computers to cleaning products, phones to pharmaceuticals, and technology to transportation. Our antitrust teams collaborate across continents, representing clients in merger reviews in the United States, Europe, and Asia and coordinating clearance processes across the globe.
What We Do
We work with our clients to understand their business goals and develop deal-specific strategies to clear the antitrust hurdles to achieving those goals.
We work collaboratively as an integrated team to leverage our collective legal, agency, and industry expertise. This holistic approach enables us to:
- Identify potential antitrust risks before the transaction is negotiated
- Ensure the proper allocation of antitrust risk between the parties
- Develop winning arguments and solutions to address any agency concerns
We are focused on achieving our clients' business objectives and getting their deals done as quickly and efficiently as possible.
Expertise
We have a long history of success in obtaining approval for our clients' transactions. The depth of our industry, agency, and legal expertise enables us to pinpoint potential antitrust concerns and develop effective strategies to resolve them.
- Industry Expertise – We draw on a deep well of industry knowledge to perfect our command of the markets in which our clients compete. This expertise enables us to counter antitrust theories with business reality and devise innovative solutions to agency concerns.
- Agency Expertise – We have decades of experience appearing before antitrust agencies around the globe. Our team includes former agency officials and staff from the United States, the EU, and Japan. We understand how different jurisdictions operate and the different analytical tools they apply.
- Legal and Economic Expertise – We have played a leading role in shaping modern antitrust law through litigation and thought leadership. Our lawyers participate as advisors to the enforcers' own International Competition Network, present to groups of enforcement officials on current issues in antitrust law, and take leadership roles in the ABA's Antitrust Section.
- Trial Expertise – Our lawyers have successfully defended merger cases in court. As trial lawyers, we excel at making the complexities of antitrust analysis accessible to judges and juries.
Strategic Solutions
We partner with our clients to devise global solutions to ensure their transactions are completed in a timely and efficient manner. Antitrust risk varies between buyers and sellers, between transactions, and between jurisdictions. We carefully assess the nature and scope of the risk in each deal, and tailor a solution to fit our client's objectives.
- Initial Evaluation – We provide clients with an early assessment of the principal antitrust risks that a deal will face.
- Transaction Negotiation – We provide counsel in the diligence process and work seamlessly with our client, corporate team, and counsel for other parties to allocate risk through deal-specific transaction terms.
- Agency Review – We closely coordinate the review process worldwide, working proactively with each agency to identify and address any concerns. We utilize leading-edge e-discovery tools to respond to Second Requests quickly and cost-effectively.
- Agency Approval – We make detailed evidentiary presentations, which are supported by business executives with first-hand knowledge of market realities and sophisticated economic analysis, to persuade agencies to approve our clients' transactions.
- Guidance – We design procedures to satisfy business needs while avoiding gun-jumping and collusion concerns that can arise from pre-closing due diligence and integration planning that can trigger competition concerns and may create collateral issues for merging parties.
- Remedies – If necessary, we work closely with our clients to devise remedies to address agency concerns while preserving the benefits of the deal.
- Litigation – We are always prepared, in the event that an acceptable resolution cannot be reached, to force the agency to take the matter to court, and our lawyers have done just that.
Representative Highlights
Our antitrust lawyers have obtained multi-jurisdictional regulatory clearance for numerous major transactions, including:
- The $2.5 billion sale of Elpida to Micron Technology
- Hitachi's $4.8 billion sale of Hitachi GST to Western Digital
- AirTran Airways' $1.4 billion merger with Southwest Airlines
- Intel Corporation's $1.4 billion acquisition of Infineon Technologies' Wireless Solutions Business
- Terumo's $2.6 billion acquisition of CardianBCT
- The $28 billion sale of Alltel to Verizon Wireless
- Arch Coal's $364 million acquisition of Triton (prevailing in court over an FTC merger challenge)
- The $4.5 billion sale of Mercury Interactive to HP
- Inamed Corporation's $3.2 billion merger with Allergan
- Nestlé's $40 billion sale of Alcon stock to Novartis
- Whirlpool's $2.7 billion acquisition of Maytag