We’ve been looking in previous posts at the merger review process through which businesses which meet certain size and value requirements must pass before a merger proposal may move forward. As we noted, the reviewing agency may offer challenges to a merger proposal prior to final approval, and these challenges can take different forms.
One possibility is that the reviewing agency may choose to enter into a negotiated consent agreement with the companies proposing the merger which would address concerns surrounding competition post-merger. The exact form such an agreement takes will vary depending on the specific details of the case and the concerns of the reviewing agency.
In some cases, concerns about competitive harm stems from the merger proposal as a whole, but in many cases a reviewing agency will identify concerns will only certain aspects of the deal. In such cases, the concerns may be resolved without detriment to the transaction itself. In some cases, the reviewing agency’s concerns may be adequately addressed without recourse to a consent agreement.
Companies proposing a merger are, of course, not obligated to work with the reviewing agency in moving the agreement forward, and some companies choose to set the proposal aside when they learn that the reviewing agency wants to make certain changes. In any case, it is important for companies to make sure their interests are represented in any final agreement.
When issues come up in the merger review process, it can help a great deal to work with an attorney experienced in navigating the process. Strong planning and advocacy throughout the process can help ensure a merger proposal has the best possible opportunity to move forward successfully.