About the Course
Introduction
This CLE webinar will examine antitrust issues that can arise throughout an M&A transaction with a specific focus on gun-jumping—the unlawful coordination between the merging parties during the pre-closing period. The panel will discuss best practices for avoiding antitrust scrutiny during pre-merger negotiations, including lessons learned from gun-jumping enforcement actions and antitrust provisions to include in merger agreements, along with drafting strategies. Time will be spent covering permissible conduct during the Hart-Scott-Rodino (HSR) waiting period through to closing, and how to counsel clients on complying with these requirements.
Description
Although HSR enforcement actions have historically been less common than substantive antitrust cases, regulators are increasingly pursuing violations, including those for "gun-jumping" and withholding required documents. In 2025, the Federal Trade Commission (FTC) penalized several crude oil producers for "gun-jumping" (pre-merger coordination) violations arising out of premature operational control and information exchanges timed before the HSR waiting period had expired. The FTC's penalty was significant—a $5.6 million civil penalty that sent a clarion call to all merging parties, spotlighting the risks of 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. Elmore advises clients on the full spectrum of antitrust and competition matters, including merger clearance under the Hart-Scott-Rodino Act, government investigations, antitrust litigation and competition policy issues. He brings more than three decades of experience from the Federal Trade Commission (FTC), where he most recently served as senior antitrust counsel and played a key role in the agency’s approach to complex and cutting-edge antitrust enforcement matters. Mr. Elmore also has significant experience coordinating with state attorneys general and many of the leading international competition authorities, including the European Commission, the UK Competition and Markets Authority, the Japanese Federal Trade Commission and the South Korea Federal Trade Commission. During his time at the FTC, Mr. Elmore held positions in the agency’s Premerger Notification Office and the Bureau of Competition’s Mergers I and Mergers II Divisions, and as attorney advisor to FTC Commissioner Mozelle W. Thompson. He also served as a special assistant US attorney in the US Attorney’s Office for the District of Columbia, where he handled more than 30 bench and jury trials involving criminal and civil enforcement matters. Mr. Elmore is involved in the antitrust bar through his leadership roles in the American Bar Association’s Antitrust Section and the National Bar Association. He also serves as a trustee for Cornell University.
With more than 30 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 past representations include securing antitrust clearance for Cintas Corporation's acquisition of G&K Services and the long-fought acquisition by Hertz of Dollar Thrifty Automotive Group. He also has represented Aetna, Axiall, Conagra, and Indivior, among other clients, on antitrust matters. Mr. Knight served as an assistant director of the Federal Trade Commission'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. He was a trial attorney at the U.S. Department of Justice Antitrust Division from 1997 to 2000.
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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, December 9, 2026
- schedule
1:00 PM ET/10:00 AM PT
I. Antitrust laws against information sharing: Clayton Act and Sherman Act
II. Merging parties' obligations under the HSR Act
III. Lessons learned from gun-jumping penalties imposed by the FTC
IV. Due diligence and the exchange of competitively sensitive information
V. Best practices and permitted conduct from execution of a merger agreement through closing
VI. 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?
Related Courses
Gun-Jumping Violations in M&A: Avoiding Illegal Pre-Merger Coordination and Purchase Agreement Drafting Strategies
Wednesday, December 9, 2026
1:00 PM ET/10:00 AM PT
