You have been working on a deal for months involving facilities, assets and staff around the world that will be transformative for your company. Antitrust lawyers have been called in to determine where competition clearance will be needed, and you finally can see the closing finish line. Then the coronavirus hits. Suddenly, key personnel are working remotely. Competition filing and timelines for clearance are upended because authorities in some countries are not operating at full capacity or are no longer allowing in-person meetings with staff. In light of these potential challenges, companies working on global transactions should be prepared for "Plan B," as outlined in the steps below, in the event competition clearance takes longer than anticipated, potentially leading to closing delays.
- Where possible, file early: Some jurisdictions, including the United States and the European Union, allow for a filing based on a signed, non-binding letter of intent, term sheet or memorandum of understanding. Consider filing before a final deal is executed to give the clearance process more time, at which point the parties can proceed to a sign and close. However, because receiving clearance may make the transaction public (depending on the jurisdiction), if clearance is received too early, the deal may be publicized before the parties are ready. Check with local counsel before filing about the current timing of the clearance process to make sure that you are managing the clearance timeline appropriately if publicity is an issue.
- Keep tabs on key personnel: Need the finance analyst to pull revenue data? Or the marketing manager to collect share information? Identify the personnel who are key to the competition filing process, and, if they are working remotely, how best to reach them if needed for questions that may come up throughout the filing and clearance processes.
- Consider timing of document collections: If your key personnel are working off-site, or could be soon, consider when and how you could conduct any needed document collections. If a remote work order may come soon, consider a collection before remote working starts, with a follow up collection when personnel are allowed to return to the office. If you think that a key person will not have access to important data while working remotely, game plan what information could be needed and gather that information first (even if you have to collect more later), while that person still has access. Many e-discovery vendors have remote collection options; make sure that this is an option for your company and that your custodians are comfortable with the remote collection process without onsite IT assistance.
- Be creative with technology: If in-person meetings with competition authorities or antitrust counsel are not possible, consider using videoconferences or Webexes so that the competition law clearance process can move forward even while people are remote.
- Antitrust laws still apply in emergencies: In times of emergencies, the US Federal Trade Commission and the Antitrust Division of the US Department of Justice recognize that there may be circumstances in which it is appropriate for competitors to work together on a limited basis to help communities impacted by those emergencies.1 But no emergency is an invitation for companies to engage in anticompetitive conduct, and global competition authorities already have announced investigations into allegations of excessive pricing and other types of abusive conduct relating to sale and distribution of medical and personal protective supplies. For example, on March 5, 2020, the Competition & Markets Authority of the United Kingdom announced that it has been monitoring changes to pricing practices during the outbreak.2 The Polish Office of Competition and Consumer Protection also announced that it was investigating two wholesalers of personal protective equipment to hospitals, including surgical facemasks, for terminating contracts in an alleged attempt to cut off doctors' access and increase prices.3
No one can expect the unexpected. But with planning ahead and creative thinking, potential roadblocks to getting a deal cleared should not be insurmountable. Putting some thought into an alternative game plan also will help to minimize stress and, ultimately, help the parties reach the clearance finish line.
2 See Press Release, "CMA Statement on Sales and Pricing Practices During Coronavirus Outbreak," March 5, 2020, UK Competition and Markets Authority, https://www.gov.uk/government/news/cma-statement-on-sales-and-pricing-practices-during-coronavirus-outbreak.
3 See Press Release, "UOKiK's Proceedings on Wholesalers' Unfair Conduct Towards Hospitals," March 4, 2020, Poland Office of Competition and Consumer Protection, https://www.uokik.gov.pl/news.php?news_id=16277.
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