The UK OFT publishes a restatement of its position concerning "Failing Firm" Defence in merger reviews

The UK antitrust authority, the Office of Fair Trading (OFT), published on 18 December 2008 a restatement of its position on the « failing firm » defence in merger reviews. In current economic conditions, this is timely confirmation of the relevant principles and practice. It is also a reminder that mergers that would probably have been blocked in better economic conditions may now be cleared. The defence allows a claim by the parties to a proposed merger that, because one of the firms is failing, there is no causal link between the merger - and the exit of one of the players and concentration of share and assets in a single player - and the competitive harm that might result. The failing firm defence is recognised and has been applied

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  • Cadwalader Wickersham & Taft (Brussels)

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Vincent Brophy, The UK OFT publishes a restatement of its position concerning "Failing Firm" Defence in merger reviews, 18 December 2008, e-Competitions Bulletin December 2008, Art. N° 33804

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