At the Antitrust Section of the American Bar Association’s annual Fall Forum on November 6, 2014, senior officials of the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) provided the following tips for antitrust practitioners.

Counsel to merging parties should respond to agency staff requests to bring in business people by arranging to bring in those business people who can provide more information about the industry or the transaction. The agency seeks this information to speed up their review of the transaction to get the deal closed more quickly, which will benefit the merging parties.

For more information on how the antitrust agencies review mergers, see Practice Notes, Corporate Transactions and Merger Control: Overview and How Antitrust Agencies Analyze M&A.

When counsel is advising a merging party to a transaction that is not reportable under the Hart-Scott-Rodino Act (HSR Act) but raises competitive concerns, counsel should:

The agencies most frequently learn about non-HSR reportable transactions through:

For more information on how antitrust agencies learn about non-reportable transactions, see Practice Note, Considerations and Strategies in Non-HSR Reportable Transactions. For more information on how third parties challenge mergers, see Practice Note, Raising Antitrust Merger Challenges: Third Party Strategies. For more on the HSR Act generally, see Hart-Scott-Rodino Act Toolkit.

When proposing a structural remedy to the agencies, such as a divestiture, counsel should:

For more information on negotiating merger remedies, see Practice Note, Merger Remedies.

If there are timing considerations in a transaction that is being investigated, counsel should communicate these considerations to the agencies.

If merging parties are likely to receive a request for additional information and documentary material (known as a Second Request), at the end of the initial HSR waiting period (generally 30 days), counsel should avoid negotiating tight premerger filing deadlines in their purchase agreement, such as a provision requiring that filings be made within five days after signing. Instead, counsel should take their time and be prepared to approach agency staff and engage them in a meaningful way at the start of the HSR waiting period. This gives the agencies the benefit of the full 30 day waiting period and may help avoid, or narrow the scope of, a Second Request.

For more information on Second Requests, see Practice Note, Hart-Scott-Rodino Act: Overview: Request for Additional Information (Second Request).

Where a transaction is being reported in multiple jurisdictions, including the US, agency officials cautioned counsel for the merging parties not to tell US agency officials to advise non-US antitrust officials how to handle a deal since this is beyond the limitations of the US agencies’ authority. For more information on how the US antitrust agencies cooperate with non-US antitrust agencies, see Practice Note, Federal Antitrust Agency Disclosure to Other Enforcement Agencies in Merger Investigations.

Counsel that has a concern about the way agency staff are handling a case or matter should discuss the issue with the lead attorney before raising the issue with the agency’s front office. In most cases, the agency’s front office already:

However, counsel may wish to raise an issue directly with the front office if staff has taken a position that is inconsistent with agency policy.

In the cartel context, the agencies generally appoint compliance monitors in transactions where:

For this reason, it is important that every company have an effective antitrust compliance program to detect, deter and limit any damage caused by antitrust violations. For more information on antitrust compliance programs, see Antitrust Compliance Toolkit.