While some businesses may choose to delay transactions in light of Covid-19, many transactions will continue, in particular if the target is in financial distress. In such scenarios, the "failing firm defence" may be an available option for obtaining merger control clearance for transactions which might otherwise raise concerns. Indeed, it seems that the UK Competition and Markets Authority ("CMA") will shortly accept that defence in the context of its ongoing Phase 2 review of Amazon's acquisition of a minority stake in Deliveroo. Merger control regimes are still in operation during the Covid-19 outbreak, although there have been some changes, in particular to encourage parties to delay notifications, and in some cases, merger control authorities have temporarily closed. For
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The UK Competition Authority uses the failing firm defence in a merger between a service provider and a food delivery supplier during the COVID-19 pandemic (Amazon / Deliveroo)
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