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Merger Control: Defending a Problematic Merger. Competition Law in Transition Dubrovnik June 15-17, 2011 Milos Barutciski. Multi-Jurisdictional Review of a Problematic Merger. Appoint lead counsel to coordinate multi-jurisdictional process
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Merger Control: Defending a Problematic Merger Competition Law in Transition Dubrovnik June 15-17, 2011 Milos Barutciski
Multi-Jurisdictional Review of a Problematic Merger • Appoint lead counsel to coordinate multi-jurisdictional process • At an early stage in merger planning, prepare detailed country analyses identifying potential problem markets and range of possible remedies • Retain economic expertise for those jurisdictions where potential concerns arise • Lead counsel to coordinate analytical approach and remedial proposals across jurisdictions
Planning the Notification Process • Identify the jurisdictions where notification is required or is advisable (even if not mandatory) • Plan and implement a multi-jurisdictional notification strategy to deal with timing and substantive issues • Ensure coordination between merging parties’ competition counsel – execute joint defence agreement • Where overlapping or similar markets, devise remedies that would address competition concerns in multiple jurisdictions • DO NOT GO IN BLIND – defences and proposed remedies must be elaborated in advance before notifying your merger
Notification & Negotiation • For jurisdictions that require a “white paper”, make sure counsel are working closely with co-counsel and other parties’ counsel across jurisdictions • Develop coordinated approach to: • Timing of notifications • Customer/supplier contacts • Responses to information requests • Timing agreements with competition authorities • Public notice, press releases and communications strategy • NOTA BENE – competition authorities communicate with one another – inconsistent justifications, explanations and public statements will be flushed out!
