Author: Steven J. Cernak
It happens all the time. You read about a merger in your industry, maybe between two suppliers or competitors. If the merger involves suppliers, maybe your sales rep makes a courtesy call. You then get back to your business, preparing to adjust as necessary. A short time later, you get a call. Some attorney from the Federal Trade Commission or Department of Justice Antitrust Division is “conducting a non-public investigation” in your industry and you deduce that it is about the merger. Is this normal? What can — or should — you do next?
Relax. That attorney most likely is just doing her job as part of the Hart-Scott-Rodino merger review process. She is asking you to play a role in that process. Most times, your role will be small as you act as a good corporate citizen and, perhaps, learn something about what is going on in your industry. Still, you will want to seek assistance and take the right steps to ensure that your actions do not distract you from your daily business.
HSR Basics
To determine if a merger is good or bad for competition, the FTC and DOJ need information about the merging parties and the relevant industries. For most large mergers, they gather that information through the Hart-Scott-Rodino (HSR) process.
HSR requires the parties to submit certain information and documents and then wait for approval before closing the transaction. The FTC and DOJ then have 30 days to determine if they will allow the merger to proceed or seek much more detail through a “second request” for information. A second request can take months, often over a year, to play out. If the agency still has competition concerns at the end of the process, it can sue to block the merger.
Throughout the process, the reviewing agency will reach out to third parties — suppliers, experts, and, especially, customers — for relevant information to help the agency predict the potential effect of the proposed merger on competition. That is where you come in.
Immediate Next Steps
After you get that call from the reviewing agency, it is a good idea to get with your friendly, neighborhood antitrust attorney. That attorney can guide you through the process, saving you time in dealing with the agency attorney and helping you understand the specialized language of merger review. (While covering hundreds of these matters in-house at General Motors, I often said that my role was to use my “automotive to antitrust” decoder ring for the good of both sides.)
At this point in the process, responding substantively to the agency call is voluntary; however, both the FTC and DOJ have processes that they can tap to compel cooperation if they think your information is key to their investigation. As you will see below, cooperating with the request usually is not too burdensome and can be the better long-term decision.
If it is not obvious from the initial request, you should obtain assurances that this really is a third-party request and you are not the subject of the investigation. Because HSR filings are confidential, the agency might not be able to explicitly confirm that they are investigating the merger; however, they can confirm if you are a subject of the investigation or merely a witness.
Then, you should do a quick check with the right people in your organization to ensure that there is no reason why the investigation might suddenly turn on you. Did you recently try and fail to negotiate a merger with one of the companies? Did you just finish some acrimonious negotiations where one of the companies accused you of acting anticompetitively?