antitrust

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M&A deal teams should take note of heightened scrutiny of HR and employment practices by antitrust enforcers in the US and Europe.

By Richard Butterwick, David Little, Elizabeth Prewitt, Sarah Gadd, Joshua Chalkley, Anuj Ghai, Catherine Campbell, and Peter Citron

No-poach, non-solicitation, and wage-fixing agreements — arrangements between companies seeking to agree wages, or prevent or limit the hiring of each other’s employees that are not ancillary and narrowly-tailored to a legitimate transaction such as an M&A deal or joint venture — can lead to significant fines and even criminal sanctions, as well as private damages litigation. Parental liability for European antitrust failings by a group company can arise even in the case of a minority stake, and even if the parent company had no involvement in or awareness of the wrongdoing.

Buyout firms and portfolio companies beware increased interest in no-poach and wage-fixing agreements from antitrust enforcers in the US and Europe.

By Tom Evans, David Little, David Walker, Elizabeth Prewitt, Sarah Gadd, Joshua Chalkley, Anuj Ghai, Catherine Campbell, and Peter Citron

Buyout firms and portfolio companies should take note of heightened scrutiny of HR and employment practices by antitrust enforcers, both in the US and in Europe. No-poach and wage-fixing agreements — arrangements between companies seeking to agree wages, or prevent or limit the hiring of each other’s employees — can lead to significant fines and even criminal sanctions, as well as private damages litigation. Parental liability for European antitrust failings can arise even in the case of a minority stake, and even where the buyout firm had no involvement in or awareness of the wrongdoing.

Companies must mitigate risks to antitrust privilege posed by cross-border megadeals and increased regulatory demand for documentation.

Richard Butterwick, John Colahan, Martin Davies, Jonathan Parker, Oliver Middleton, Gregory Bonné, and Catherine Campbell

A strong M&A market has driven a high volume of megadeals across the globe in recent years, with acquirers turning to ambitious transactions. Antitrust issues frequently arise on such complex deals, and in an evolving antitrust environment, taking a planned and strategic approach to privilege during the deal process is crucial. Balancing the need to run a thorough due diligence exercise and transparent deal process with the need to maintain confidentiality and privilege can be challenging. In our view, practical planning for privilege issues forms a key part of successfully navigating international M&A deals.

In our latest video series, out antitrust lawyers discuss key merger control issues that dealmakers should consider to ensure a smooth antitrust review of strategic transactions.

Click on the video playlist below or visit our video gallery page to hear their views on key topics impacting global transactions; gain practical tips on how to minimize antitrust risk, and ensure a timely deal close.

If you have any questions or comments on these topics, please get in touch with our team

We examine: increasing focus on non-controlling stakes, burdensome document production requests, heightened enforcement of gun jumping rules, examination of vertical deal overlaps, and ongoing political developments.

By John Colahan, Peter Citron, Calum Warren, David Walker, Tom Evans, and Catherine Campbell

In a continually evolving antitrust landscape, we consider five key trends that PE deal teams should be aware of.

Focus on Non-Controlling Stakes in Competing Companies

Antitrust authorities are paying closer attention to “common ownership”, the simultaneous ownership of non-controlling stakes in competing companies, with the EU’s Competition Commissioner, Margrethe Vestager, publicly stating that the European Commission is looking “carefully” into the issue. While public companies were the initial focus, we expect that private companies will face a similar level of scrutiny. As co-investment deals and non-controlling acquisitions become more common, deal teams should not assume that acquiring a minority position will mean that antitrust issues cannot arise.

Increasingly Burdensome Document Production Requests

Burdensome document requests from the European Commission and the UK’s Competition and Markets Authority (CMA) have become more frequent – both regulators are now adopting a more fulsome US-style approach to document production. PE firms need to consider communications made in preparation for and during a deal, and how these may be viewed by competition authorities. Requests for third-party reports, sale documents, and even emails between buyers, sellers, shareholders, and customers are not uncommon. When faced with document requests, firms need to engage in early coordination to handle authorities’ information requests, manage carefully the search and production of discovery materials, and address attorney-client privilege protections and data privacy safeguards. Even if transactions ultimately do not raise substantive concerns, fines can be imposed and delays to transaction timetables can occur as a result of non-compliance.

By Jonathan Parker and Greg Bonné

As the UK Competition and Markets Authority (CMA) prepares to assume sole jurisdiction for UK competition reviews post-Brexit, private equity deal teams must evaluate the competitive consequences of deals bridging the Brexit period and update their competition strategy accordingly.

What is Changing?

The European Commission (EC) currently acts as a one-stop-shop supranational authority for large transactions that meet Europe-wide competition turnover thresholds, obviating the need for competition filings in individual Member States. However, post-Brexit, transactions impacting competition in the UK and the EU will become concurrently reviewable, i.e., the CMA will review UK aspects and the EC will review European aspects. A significant increase in the number of UK merger reviews carried out by the CMA is likely — the CMA believes that Brexit could result in a further 50 notifications per year, nearly doubling its current workload.

Why Does it Matter?

Timing for the establishment of the CMA’s separate jurisdiction is uncertain. At the earliest, jurisdiction could be effective immediately after the UK leaves the EU  on 29 March 2019. A two-year stay is also possible, depending on the terms of separation. The period building up to the CMA’s separate jurisdiction is likely to be the trickiest for deal teams to navigate. PE firms may not be able to implement the same merger control strategies as in the past.

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By Sven Volcker and Tomas Nilsson

In the last five years, the European Commission (EC) has required divestitures in more than 70 antitrust cases, requiring merging parties to divest business assets as a condition to receiving regulatory approval. This increasingly interventionist approach from competition regulators presents opportunities for buyout firms to acquire divested assets.

However, regulators are increasingly imposing upfront buyer requirements to ensure the ongoing success of the divested business — divested asset purchasers must be approved before the underlying merger transaction can be completed. PE buyers may need to significantly advance transaction work, including negotiating final form documents (which must be provided to the regulator for review), before they find out if they are a suitable purchaser.

By Gail Crawford, Hayley Pizzey, Mark Sun, and Calum Warren

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As European data protection regulators prepare to enforce the General Data Protection Regulation (GDPR) from May 2018, private equity firms must act to minimise the risk of becoming financially liable for the data protection failings of portfolio companies. After a recent spate of high-profile data breaches, the risks for financial sponsors are high.

Why is a Data Protection Failing at Portfolio Company Level a Serious Concern for a Buyout Firm?

The GDPR sets out defined obligations and extends EU data protection law’s territorial reach, catching any business that operates in the EU, or offers goods and services to — or monitors the behaviour of — EU data subjects (whether in the EU or not). Fines for noncompliance can be substantial — up to the higher of €20 million or 4% of an undertaking’s global annual turnover. The regime defers to the EU antitrust concept of “undertaking”, which in our view means fines may be calculated by reference to the combined revenue of an offending portfolio company and the buyout firm (including the firm and all other portfolio companies within its group). This leaves open the possibility of data protection regulators directly fining buyout firms for the failures of portfolio companies.

By Rosa Espín and Leticia Sitges

The Spanish government recently passed a draft bill for the “ rationalization and organization of the supervising regulatory bodies of the markets and the improvement of its governance” (the Draft Bill). The bill aims to reorganize antitrust regulation, and to improve supervision and regulation in the economic and financial domains, specifically the banking, capital markets, and insurance sectors.

On 4 June 2013, the Spanish government passed Act No. 3/2013, creating the Comisión Nacional de los Mercados y la Competencia ( CNMC). This comprises several regulatory bodies: the National Energy Commission; the National Antitrust Commission; the Telecommunications Market Commission; the Rail Regulation Committee; the Airport Economic Regulation Commission; and the National Postal Industry Commission.

According to the new Draft Bill, the CNMC, the Spanish current national regulatory authority (NRA), will be replaced by four new independent administrative authorities:

  1. An Independent Administrative Authority for Antitrust
  2. An Independent Administrative Authority for the Supervision and Regulation of the Markets
  3. An Independent Administrative Authority for Insurance and Pension Plans
  4. An Independent Administrative Authority for the Protection of Financial Services Consumers and Financial Investors