There are important antitrust considerations at every stage of a transaction from inception to closing. The merger review process takes a different path for every transaction, requiring careful navigation by experienced practitioners. Involvement of antitrust counsel is often overlooked and can ultimately be quite costly.
1. This paper provides a practical overview for corporate counsel involved in the U.S. merger review process. There is no doubt that to secure the best outcomes in U.S. merger reviews, involvement of experienced counsel throughout the transaction – from inception to closing – is critical. Mistakes made early in the process can severely impact the trajectory of regulatory review. While the U.S. system is considered relatively well-structured and transparent, there are many intricacies and potential pitfalls that require careful management. We discuss below key considerations for providing counsel at each of the stages of U.S. merger review, including pre-signing negotiation and due diligence, the HSR filing itself and the ensuing waiting period, a Second Request, and subsequent remedy