Antitrust: Mergers, Compliance, and Investigations
How can businesses prevent antitrust risk from disrupting their plans? Clients rely on our team of seasoned antitrust practitioners and former senior government enforcers to accurately predict the regulatory risks that threaten their commercial success. And they count on us for practical and actionable advice that helps them navigate and minimize those risks and meet their strategic goals.
Sound antitrust advice helps corporate leaders make informed decisions. Companies contemplating mergers, acquisitions, investments, and joint ventures need to know whether government enforcers are likely to challenge or delay a proposed transaction. Manufacturers and service providers need to structure their pricing, sales, and distribution strategies with compliance priorities in mind. Industry and trade association members need to understand where the antitrust boundaries lie. And, if the antitrust enforcers conduct a raid with the FBI, businesses need to know how to respond.
Alston & Bird’s antitrust team, with attorneys based in Washington, D.C., Atlanta, and San Francisco, can guide clients through these minefields – whether a deal is routine or complex, whether a business has years of compliance experience or is just getting started, and whether executives or entities are subject to civil or criminal investigations at the federal or state level.
Our attorneys have worked on many high-profile merger reviews and antitrust investigations over the past two decades, both in private practice and government service. Members of our team have previously served as senior officials at the U.S. Department of Justice (DOJ) under both Democratic and Republican administrations, and worked at the Federal Trade Commission (FTC) and with state attorneys general known for active antitrust enforcement. We offer valuable insights into the policies, processes, and priorities that drive today’s antitrust enforcement decisions so you can take the necessary steps to reduce regulatory risk and achieve your business goals.
Alston & Bird provides comprehensive antitrust representation. Our expanded regulatory practice, based in Washington, D.C., complements the firm’s prominent antitrust litigation practices based across the country. We advise leading U.S. and international corporations, mid-sized and startup companies, private equity firms, trade associations, and executives. Reflecting the firm’s complementary practice strengths, our antitrust team has extensive experience in the health care, pharmaceutical, financial services, private equity, technology, chemicals, telecommunications, and building products sectors.
Mergers & Acquisitions
Our firm provides clients with a one-stop shop for antitrust advice on U.S. and international mergers, acquisitions, investments, and joint ventures. Our overriding goal is to ensure that you are fully informed and well advised about the regulatory process, enabling you to plan for and mitigate potential risks.
Deal Risk Analysis. Decades of combined experience in government and private practice enables our team to reliably predict the risk that antitrust enforcers will challenge a deal or engage in a lengthy investigation. Where necessary, we advise on strategies to mitigate or shift that risk.
Due Diligence. We advise merging parties on applicable antitrust restrictions on the exchange of competitively sensitive information. We take a practical approach and employ strategies that protect our clients from avoidable risk while enabling critical diligence to proceed.
Analysis of Filing Requirements. Our lawyers evaluate pre-merger filing obligations under the Hart–Scott–Rodino (HSR) Act and foreign competition laws. We understand the complex regulations that govern these filing obligations, including exemptions that can make a filing unnecessary.
Merger Control Filings. If an HSR Act filing is required, as is the case for many routine transactions, our efficient approach reduces costs and speeds the filing process. And on cross-border transactions, we manage and coordinate international filings, ensuring that we take consistent positions across jurisdictions and are thoughtful about the impact the current filings and positions could have on future transactions.
Agency Advocacy in Merger Investigations. We represent buyers and sellers in DOJ and FTC investigations of mergers and acquisitions. Our strategic approach is informed by an intimate understanding of the government’s enforcement priorities, policies, and procedures. We have a strong track record of obtaining unconditional clearance for strategic transactions involving competitors.
Integration Planning. We guide merging parties as they work to efficiently integrate and achieve the benefits of a transaction while minimizing the risk of costly “gun-jumping” violations.
Third-Party Representation. We also advise third parties contacted by the government about competitive issues stemming from transactions by other parties or that are interested in buying assets being divested to address the government’s antitrust concerns. And if our clients wish to raise concerns about a transaction’s potential effects on competition, we can help develop a credible story to present to the agencies to encourage an inquiry or investigation.
Our team provides practical and actionable advice to help you assess and mitigate antitrust risks raised by everyday business practices. We provide:
Compliance Policies, Training, and Audits. We design and conduct up-to-date, customized corporate compliance policies, training, and audits that reflect our clients’ commercial needs and the ever-changing legal landscape. Having these mechanisms in place is crucial to spotting and addressing antitrust risks that can grow to become significant threats to your company.
Advice on Sales & Distribution Matters. We provide both comprehensive and issue-specific counseling on antitrust risks associated with sales and distribution activities that are the lifeblood of business, including topics such as exclusivity, pricing, multiproduct incentives, noncompetes, competitive intelligence, and distribution structures.
Trade and Industry Associations. Our attorneys advise clients on how to avoid antitrust minefields when engaging in legitimate collaborations with competitors – including routine board and committee service, trade show activities, standard setting, information exchanges and surveys, group purchasing, and lobbying.
Our firm represents and advises companies, corporate boards, and individuals in civil and criminal enforcement matters, including government investigations of alleged price fixing, bid rigging, collusion, improper information exchanges, excessive exclusive dealing, and group boycotts. Our skilled team is fully engaged through every step in the process, working toward a quick resolution with minimal impact to current or future business operations.
Civil Investigations. We help clients defend against government investigations of anticompetitive commercial practices, whether by the DOJ, FTC, or state attorneys general.
Criminal Investigations. From the first knock at the door by a government agent, we help companies defend against criminal investigations that can drive a company out of business and send officers and employees to federal prison. We bring a toolkit that includes efficient internal investigations, prompt consideration of leniency or amnesty applications across borders, aggressive defense, and successful negotiation with government prosecutors.
Third-Party Discovery. We advise customers, competitors, and other third parties facing requests for information from the government. Proactive engagement by our team can often narrow the scope of the demands and significantly reduce the burden and expense to our clients.
Represented Boral Limited , a leading global building materials supplier, in obtaining unconditional Hart–Scott–Rodino (HSR) Act clearance for its $2.6 billion acquisition of Headwaters Inc.
Represented Getinge AB in connection with an FTC investigation into the acquisition of a competitor, successfully negotiating a consent decree that allowed the client to complete the acquisition.
Counseled First Cash Inc. in obtaining regulatory clearance, without conditions, for its $2.4 billion merger with Cash America Inc., which created the largest operator of retail pawn stores in the U.S.
Represented a leading dialysis provider in a merger with a competitor, negotiating a consent decree with the FTC allowing the client to complete the acquisition.
Represented a leading European specialty aluminum company in securing antitrust clearance for a $330 million asset acquisition from a major U.S. aluminum manufacturer.
Represented the nation’s largest manufacturer of paper packaging products in a DOJ merger investigation, second request, and divestiture.
Represented an international payment processor in a DOJ investigation into its acquisition of a competitor. Effective advocacy eliminated concerns and allowed the transaction to proceed without divestitures or delay.
Represented a leading building supply manufacturer in obtaining clearance for the $200+ million sale of an operating unit to a competitor, with no divestitures.
Represented the first state-owned Chinese company approved by the FTC to buy assets required to be divested as part of a challenged merger (as part of the $11.8 billion acquisition by NXP Semiconductor of Freescale Semiconductor).
Antitrust counsel for a multinational industrial mineral producer in connection with DOJ investigations into multiple acquisitions of competitors. Resolved investigations before a second request.
Provided a Chinese manufacturer with analysis of pre-merger filing requirements in more than 80 jurisdictions in connection with the acquisition of a European competitor.
Represented one of the world’s largest chemical companies in obtaining antitrust clearances in multiple jurisdictions for a series of transactions with rivals without any divestitures.
Represented the world’s leading provider of technology and marketing services to the travel and transportation industry in a DOJ investigation into a multibillion-dollar outsourcing, asset acquisition, and marketing transaction with a leading global technology services company. Resolved the DOJ’s antitrust concerns with only minor adjustments to some of the original agreements, having no material effect on the value of the deal to either party.
Represented multiple leading companies subpoenaed to provide information as part of recent FTC and DOJ investigations of mergers in the health care, oil and gas, insurance, office supply, and metals industries.
Advised major hospital systems on the antitrust ramifications of different types of collaborative transactions, including mergers, virtual mergers, joint operating relationships, joint ventures, and networks.
Advised leading industry coalitions and trade associations on antitrust compliance in regulatory, lobbying, information sharing, and standard setting initiatives.
Represented multiple leading retailers and apparel manufacturers on antitrust compliance and state consumer protection matters.
Counseling leading U.S. and global companies on antitrust issues, including HSR Act pre-merger requirements and filings, compliance policies and training, compliance reviews, dawn raid protocols, competitor collaborations, exemptions, group purchasing, pricing and distribution practices, interlocking directorates, and government investigations.
Advised one of the largest health care companies in the U.S. on antitrust and public policy issues, including legislative proposals and participation in antitrust agency hearings.
Represented a former telecommunications executive and potential target in a DOJ investigation into alleged Sherman Act violations.
Served as special discovery counsel in a rare litigated challenge by the DOJ Antitrust Division to a consummated merger.
Represented an inventory management company in an FTC investigation into its business practices.
Convinced a federal antitrust agency to investigate and secure a consent decree barring a rival’s anticompetitive distribution practices.
Represented a generic pharmaceutical company responding to a multistate attorneys general investigation involving allegations of “reverse payment” settlements.
Represented a global auto parts manufacturer in conjunction with criminal price-fixing investigations by antitrust agencies in multiple countries, securing no individual prosecutions and only minimal fines.
Represented individuals in criminal antitrust investigations by the DOJ, including an airline executive in an air cargo cartel investigation and a real estate investor in a foreclosure auction bid-rigging investigation.
Represented one of the world’s largest floor covering manufacturers in a DOJ investigation related to price fixing of polyurethane foam.
Represented a national service provider in resolving allegations of price fixing brought by a state attorney general.