Boiling Points: Hot documents in antitrust merger cases
Introducing the Boiling Points collection and counseling program from Dechert’s antitrust/competition practice. The program was developed to provide a single customized solution for guidance on assessing when hot documents may interfere with deal progress and how procompetitive, factually grounded deal themes may smooth the path.
How management or a deal team communicates its deal can significantly impact merger reviews and the likelihood of obtaining antitrust approval. Hot documents often lead to deals being delayed and even blocked.
Through Boiling Points, our antitrust lawyers offer counsel and business teams practical guidance to help prevent costly deal delays or challenges that can stem from “bad documents” – those that government enforcers may view as problematic.
While the Federal Trade Commission (FTC), Department of Justice (DOJ), and State Attorneys General (State AGs) use both deal documents and ordinary-course-of-business documents in their merger decision-making, the Boiling Points collection focuses on deal documents. These are typically documents prepared by or for a company’s most senior management or its board when evaluating a proposed deal.
The government places the greatest weight on deal documents because they often speak most directly to the core antitrust issue – whether the merger is likely to harm consumers. When reporting transactions under the Hart-Scott-Rodino (HSR) Act, companies must collect senior management documents prepared “for the purpose of evaluating or analyzing the acquisition with respect to market shares, competition, competitors, markets, potential for sales growth or expansion into product or geographic markets.”1 The FTC, in explaining its merger enforcement decisions, highlighted and even measured the importance of “hot documents.”2 For these purposes, the FTC has defined a document as “hot” if “it predicts that the merger will produce an adverse price or non-price effect on competition.”3
Another key reason to focus on deal documents is that the content of deal documents can be centered on pro-competitive deal themes when supported by the commercial realities. It is hard to manage the content of ordinary-course-of-business documents prepared every day by thousands of employees.
In contrast, deal documents arise from smaller teams in a concentrated time period. Counsel oversight, grounded in fact-based messaging, can make a big difference in deal document content and thus in antitrust merger investigation outcomes.
The Boiling Points collection features real-world documents that government antitrust agencies used to support enforcement decisions against merging companies. Dechert’s antitrust lawyers curated the collection from an exhaustive review of publicly available court and antitrust agency records — it is the first and only comprehensive collection of actual documents that have contributed to enforcement decisions by government authorities.
The illustrations help to identify hot content that is likely to draw attention in merger investigations and potentially create sideshows that distract from other important evidence. The collection is intended to help counsel and business teams develop pro-competitive, fact-based deal themes and to spot hot content that may need to be analyzed or explained.
In a live Boiling Points training presentation, Dechert uses a tailored subset of the illustrated slides to guide key personnel, such as in-house counsel, M&A professionals, corporate or business development personnel and senior management. Beyond cautionary tales, the goal is to help these teams improve internal and external communications and to reduce the risk of costly distractions due to problematic language, including terms that could be misinterpreted or taken out of context.
The collection features a user-friendly roadmap, set forth in the table of contents that organizes the illustrated deal documents by types of common analyses:
- Describing the combined firm
- Describing the seller
- Deal rationale
- Synergies and valuation
- Pricing or financial analyses
- Antitrust risk
As you consider the slides in the collection, you should keep the following in mind:
- Guidance should be industry-tailored and deal-tailored, accounting for the particular antitrust sensitivities presented in the setting.
- Consideration of the audience, whether bankers or senior management, may be important.
- The timing of the counseling or training – e.g., pre-signing, post-signing, or part of the integration planning process – may impact the nature of the guidance. Preparation prior to the flurry of a live deal may be the best preventive medicine.
- Stress the need to adopt genuine, procompetitive deal themes that align with commercial realities. These procompetitive themes can serve as the foundation for internal and external communications.
In merger review, antitrust agencies attach significant weight to hot documents prepared by senior management. This can be a colorful phrase in a bullet point, or financial modeling of the deal reflecting price changes.
In this recorded webinar, antitrust/competition co-chair and former Federal Trade Commission, Assistant Director Mike Cowie and partner Rani Habash highlight real-world examples of hot documents that garnered unwanted attention from government authorities. The panel also provides guidance on using fact-based, procompetitive themes in merger planning communications that support your deal.
Committed Capital Sidecar | Hot Documents in Merger Review
“Committed Capital Sidecar” is a bite-sized feature within our Committed Capital podcast series which quickly covers a key development affecting the private equity industry.
In this Sidecar episode, antitrust partners discuss ways in which deal makers can reduce antitrust risks in their communications and how we should expect government enforcers to evaluate deal analyses.
Dechert’s global antitrust practice, named a Law360 “Competition Practice Group of the Year” for the last two years, has an unmatched reputation for practical antitrust advice. Across industries and regions, leading companies rely on Dechert’s knowledge of the government process and successful track record securing clearance for the most visible, challenging deals.
Dechert is also the creator of the Dechert Antitrust Merger Investigation Timing Tracker, better known as DAMITT. The quarterly report is the leading source of analysis for significant U.S. and EU antitrust merger investigation and litigation trends.
1 16 C.F.R. § 803, Appendix (Notification and Report Form for Certain Mergers and Acquisitions, Instructions, at V).
2 FTC, Horizontal Merger Investigation Data, Jan. 2013, at 4.
3 Id. at 4 & n. 19 (referring to tables 5.1, 5.2, 6.1, and 6.2 used to measure the impact of hot documents).