Last time, we began discussing–in very cursory fashion–the merger review process. As we noted, either the FTC or the DOJ is assigned to a merger review case. Once that happens, the agency can take several steps, depending on what it deems best in the case.
The agency can either wait to the end of an initial waiting period or end the waiting period early, giving approval for the merger, or request additional information from the parties. If additional information is requested, the companies are expected to substantially comply with the request by providing sufficient documentation and information.
Once the parties have substantially complied with the second request for information, the reviewing agency has another period of time to review the materials. After these materials are reviewed, the merger proposal can be approved, blocked by filing an injunction in federal court, or further negotiated. In the latter case, the parties are able to rework the deal so that competitive concerns are addressed.
Most proposed mergers do not involved concerns about market competition. Among those which do, it is often possible to resolve these concerns if the parties are willing to work together with the reviewing agency. In some cases, though, even given the willingness to negotiate, reaching an acceptable agreement is not possible and the deal is called off. In other cases, the agency may end up moving to block the merger in federal court if the parties are unwilling to change their proposal.
Working with an experienced attorney can help companies navigate the merger review process as smoothly as possible. Of particularly concern in the process is to ensure that a company negotiates wisely so as to protect its legal rights and financial interests while attempting to get past antitrust hurdles.