At TransPerfect Legal's fifth annual Antitrust Clearance and Merger Enforcement Conference (ACME), industry experts gathered to share insights on managing multi-jurisdictional merger reviews in today's evolving regulatory landscape. The panel, "Navigating Multi-Jurisdictional Merger Reviews," featured Teisha Johnson, Partner at Baker McKenzie; Kristen Limarzi, Antitrust Partner at Gibson, Dunn & Crutcher; and Llew Davis, Associate General Counsel of Competition at Meta. These experts offered valuable perspectives from both in-house and external counsel standpoints, sharing practical strategies for managing multinational HSR proceedings as they transition into complex cross-border merger reviews.

Today's Merger Control Reality: Key Changes in 2024

The FTC now reviews deals over $101 million with heightened scrutiny, while the EU requires mandatory notifications for tech companies designated as gatekeepers. The UK's Digital Markets Unit has implemented new reporting requirements in Q1 2024. This regulatory expansion directly affects deal timelines, with data showing merger review periods have increased by 25% since 2022, making early preparation essential for success. Various countries, such as India, have new requirements, and AI partnerships are also receiving additional scrutiny.

The FTC often has different opinions on the impact of deals than corporate counsel. For example, in a recent Meta deal, the FTC argued that Meta’s decision to buy rather than build with the other company involved would lessen competition—a conclusion not supported by the evidence. Meta presented experts who contended that the acquisition would actually increase litigation in competition, not lessen it.

Understanding these new requirements raises a critical question: When should companies begin their merger review preparations?

Action Plan: Start Here

Early preparation emerged as a crucial theme throughout the discussion. The experts emphasized that preparations should begin as soon as a deal becomes likely, with outside counsel engaged at the earliest stages of consideration. This early engagement allows for timely document identification, collection, and review of business documents for multinational filings, consideration of pre-notification processes in key geographical jurisdictions, and adequate planning for regulatory review timelines. The panel stressed that coordinated filing strategies across jurisdictions are essential for successful outcomes. Additionally, external counsel can provide guidance on factors such as estimated timelines for deal closure, the likelihood of deal blockage, strategic risk allocation, and projected costs for both HSR filings and potential second request processes.

Document Management: A Data-Driven Approach

When it comes to document identification, collection, and review, the panel advocated for a strategic approach focusing on existing ordinary course documents, including win/loss data, strategic analyses, competitive landscape documentation, and market data from third-party reports. When HSR proceedings escalate to second request reviews, the experts discussed evaluating the use of TAR 1.0 versus TAR 2.0, considering agency preferences for review methodologies. They noted that companies must carefully balance speed and cost in second request collection decisions, sometimes planning for potential over-collection when timing is critical.

Tackling Multi-Language Challenges

For cross-border mergers, language considerations require careful planning across both the filing and potential second request stages. For multilingual second request reviews, the experts recommended a layered approach to translation strategy. This begins by identifying primary languages within the document collection and using machine translation for initial reviews. To assist corporate clients with constrained budgets, human translation can be reserved for critical documents only. The panel emphasized the importance of negotiating with agencies on acceptable translation methods and considering cost-effective approaches to multi-language reviews.

Cross-Border Privilege Protection

Protecting privilege across multiple jurisdictions emerged as a critical consideration in both HSR and second request processes. The experts recommended establishing baseline privilege determinations under US standards, then adjusting these claims based on local jurisdiction requirements in different countries. This process requires close collaboration with local counsel in each country to understand varying privilege rules. Careful documentation of production decisions and preservation of privilege claims becomes especially important when producing documents in cross-border jurisdictions with different standards. Notably, documents do not need to be specifically prepared for HSR filings given the focus on ordinary course of business content. However, if a corporation decides to prepare new documents, they must be clearly labeled as prepared at the request of external counsel to maintain privilege.

Future Trends and Changes

The merger review landscape continues to evolve, with several significant changes on the horizon. The panel highlighted upcoming potential changes to HSR rules in the US, the implementation of new digital market regulations, and an increased focus on smaller transactions. The rising importance of cross-border coordination, along with advancements in document review technologies and methodologies, will continue to shape the field.

Keys to Success

In today's complex regulatory environment, successfully navigating multi-jurisdictional merger reviews requires a comprehensive approach. Companies must start early, plan thoroughly, and build in flexibility to accommodate the varying requirements of different jurisdictions. Engaging experienced outside counsel and eDiscovery partners at the outset is crucial. Organizations need clear strategies for privilege protection while balancing cost and speed in review decisions. Maintaining consistent positions across jurisdictions, while planning for evolving regulatory requirements, is essential.

The panel concluded that success in navigating multi-jurisdictional merger filings and second request reviews hinges on careful planning, strategic thinking, and deep understanding of varying jurisdictional requirements. Companies must remain adaptable and forward-thinking, paying rigorous attention to detail across all aspects of the review process. As regulatory landscapes continue to evolve, this balanced approach becomes increasingly critical for achieving successful merger outcomes.