Description
In early January 2025, the Federal Trade Commission (FTC) imposed a record $5.6 million civil penalty to settle allegations that three oil and gas companies engaged in illegal pre-merger coordination, also known as "gun-jumping," prior to the closing of their proposed merger. This recent development serves as a reminder to all merging parties of the risks involved in failing to properly navigate pre-merger waiting time periods under the HSR Act.
While certain information can be shared during deal negotiations and in the period between signing and closing, parties with competing products or services should avoid sharing "competitively sensitive information" such as pricing information, strategic plans, future product offerings, and customer-specific information except through a properly structured clean team process. Parties must also carefully negotiate interim operating covenants for all transaction agreements.
Even with a merger agreement in place, the merging parties remain independent companies until closing and must act accordingly. Counsel should closely monitor any interactions between the parties and safeguards should be established to protect the parties prior to regulatory approval and closing.
Listen as our authoritative panel discusses the key antitrust issues that should be considered upfront in any M&A transaction and best practices during due diligence, pre-merger negotiations, and pre-closing planning processes.
Presented By
Mr. Gordon’s practice includes handling both civil and criminal litigation matters as well as federal and state government investigations; representing clients in mergers and acquisitions before the FTC, Antitrust Division of the DOJ and state competition authorities; and counseling clients on a variety of joint venture and marketing and distribution practices. He has extensive experience in developing and implementing global antitrust compliance programs and has handled diverse matters involving consumer protection issues, advertising and trade association activities.
With more than 25 years of experience as an antitrust lawyer in both government and private practice, Mr. Knight advises clients on a full range of competition law matters including mergers, joint ventures, competitor collaborations, distribution issues, price discrimination, monopolization, and intellectual property restraints. He routinely represents clients before federal and state antitrust agencies and federal courts. Mr. Knight also co-heads the firm’s Hart-Scott-Rodino Act premerger notification team. He served as an assistant director of the FTC’s Bureau of Competition from 2003 to 2007, heading the Bureau's Mergers II Division, where he oversaw hundreds of investigations across an array of industries including technology, chemical manufacturing, mining, and agriculture. Mr. Knight has held various leadership positions in the ABA's Section of Antitrust Law over the past 18 years and currently serves on the editorial board of the Section's Antitrust Source publication. He writes and speaks frequently on antitrust enforcement topics.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Wednesday, March 12, 2025
- schedule
1:00 p.m. ET./10:00 a.m. PT
- Antitrust laws against information sharing: Clayton Act and Sherman Act
- Merging parties' obligations under the HSR Act
- Lessons learned from recent imposition of record high gun-jumping penalties by the FTC against merging oil and gas companies
- Due diligence and the exchange of competitively sensitive information
- Best practices and permitted conduct from execution of a merger agreement through closing
- Practitioner pointers and key takeaways
The panel will review these and other key considerations:
- What types of information are considered "competitively sensitive information" for antitrust purposes?
- How should merging parties handle the pre-signing due diligence and pre-closing planning processes to avoid antitrust scrutiny?
- What kinds of actions and communications are permitted between the parties before closing?
- What best practices should merging parties follow during the pendency of the HSR waiting period?
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