Merger Clearance & Litigation Services

Overview

McDermott’s global Antitrust & Competition team has extensive experience in all facets of the merger review process. We understand the concerns of business leaders and regulators alike across the world and have a reputation for success in even the most difficult, complex deals.

Companies need to navigate multiple regulatory regimes to complete their M&A transactions, including antitrust reviews, foreign investment notifications and, new in 2023, foreign subsidies regulation. McDermott’s practical, efficient advice helps clients navigate these regimes and delivers successful outcomes to get their deals closed. With lawyers in the United States (US), the United Kingdom, Germany, France and Belgium, our team prepares our clients for merger regulatory trends and new regimes.

Related Capabilities

Antitrust/Competition Law Filings and Clearance

In the increasingly complex regulatory landscape, businesses must have a captain with the experience necessary to handle government investigations and coordinate across filing regimes.

We regularly defend clients in merger-related antitrust investigations and inquiries before the US Federal Trade Commission (FTC), the US Department of Justice (DOJ), the European Commission (EC) and other international jurisdictions. We work hand-in-hand with clients at every step, from the earliest transaction consideration through the initial waiting period and, when required, compliance with agency requests for additional information, including “second requests.” When necessary, we vigorously defend transactions in court. We also represent third parties that wish to oppose transactions before the FTC, DOJ and regulatory bodies in other major jurisdictions, and we manage local counsel effectively when filings are required in locations where we do not have an office. In addition, we assist companies in obtaining regulatory clearance for their purchase of assets being sold under a divesture order. For example, we represented FactSet in obtaining EC-suitable purchaser approval for its acquisition of S&P’s CUSIP Global Services business for $1.9 billion when that business had to be divested to resolve EC concerns with the merger between S&P and IHS Markit.

Clients value our ability to overcome regulatory hurdles and to do so quickly. The key to our success is our technically skilled and practically oriented team, including many former regulators with outstanding relationships with investigators and prosecutors. Globally, we anticipate issues rather than wait for regulators to find problems. We learn the industry and clearly communicate with agency staff so that we can address issues early on and avoid a lengthy investigation where possible.

We continue to explore creative ways to obtain merger clearances swiftly and efficiently. For example, we obtained a very rare derogation (non-enforcement) of the premerger waiting period in an acquisition that needed to be closed very rapidly to comply with European Union (EU) regulations arising from the ongoing conflict in Ukraine. Our team brings significant depth in navigating the multifaceted and complex intricacies of compliance with the Hart-Scott-Rodino Act (HSR) and multijurisdictional merger filing analysis. We have a large HSR team, headed by a former member of the FTC’s Premerger Notification Office who is highly skilled in assessing transactions for reportability, reporting and expediting transactions wherever possible. Our team is one of the most frequent filers, and we recently made over 100 HSR filings in a single year.

Foreign Direct Investment

The number of jurisdictions imposing foreign direct investment (FDI) filing requirements is growing substantially in light of changing geopolitical dynamics and the increasing use of cross-border restrictions to support national security interests. Our team has the practical know-how to navigate FDI regimes around the world to manage the filing strategy for our clients wherever needed. Clients benefit from leveraging not only our in-house global team but also our strong relationships with peer firms and local experts across the world. We provide prefiling screenings for reportability and lead the filing process from start to finish.

Foreign Subsidies Regulation

The EU Foreign Subsidies Regulation (FSR) becomes applicable in July 2023 and presents a new regulatory obstacle for global M&A transactions. We guide clients through the additional hurdles and mandatory filing requirements and advise on developing and implementing proactive tracking procedures for financial contributions received from non-EU member states to prepare for the new regulation.

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Results

Advised PerkinElmer on the antitrust and FDI filings for its $2.45 billion sale of its Applied, Food and Enterprise Services businesses to New Mountain Capital. This matter required FDI filings in seven jurisdictions and merger filings in three jurisdictions
Advised Bemis Company, Inc. in its $6.8 billion acquisition by Amcor Ltd., creating the largest flexible packaging firm in the world. This transaction required merger control filings in 15 jurisdictions across the globe and divestitures in the United States and the European Union to obtain antitrust clearance
Advised JAB Holdings/Coty on its $12.5 billion acquisition of P&G’s fragrance, hair care and cosmetics business (43 brands, including CoverGirl), which required antitrust filings and/or advocacy that we captained in the United States, Canada and Mexico

Advised Mars on its $9.1 billion acquisition of VCA, a provider of specialty and emergency veterinary services, which required antitrust filings and/or advocacy in the United States and Canada
Represented a major biotech firm in a >$10 billion acquisition of a competitor in a concentrated product space, achieving clearance following a detailed FTC investigation
Represented a major aerospace and defense contractor in a >$9 billion acquisition, obtaining DOJ clearance despite significant vertical relationships. Also obtained rapid merger clearance in seven other jurisdictions, including the EC and China
Represented Constellation Brands in its sale of a portfolio of wine brands to E&J Gallo for approximately $2 billion. The transaction cleared with limited divestitures following an extensive FTC second request process
Represented Constellation Brands in connection with its $4.75 billion acquisition of the Corona and Modelo beer brands in the United States. This was a three-way transaction involving Modelo, Anheuser-Busch Inbev and Constellation. We defended the transaction through the DOJ review, lawsuit and a highly favorable settlement
Obtained clearance for the SIGNA/HBC/JV Karstadt Kaufhof transaction before the German Federal Cartel Office. This matter involved an extensive prenotification and phase 1 analysis, and it ultimately closed without challenge
Represented Martin Marietta Materials in an approximately $2 billion acquisition of Bluegrass Materials, a major supplier of construction aggregates. The transaction cleared with limited divestitures following an extensive second request
Advised Orica in connection with its acquisition of Dyno Nobel’s European, Latin American, Asian, Middle Eastern and African explosives business, creating the world’s largest explosives supplier. This matter included complex filings before the EC and multiple other jurisdictions
Advised a leading Southeastern US health system in its merger with a nearby health system. Obtained unconditional antitrust clearance after a detailed second request investigation by the FTC

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