USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn
7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Complaints and Agency-solicited input from custom - ers, suppliers, competitors and other industry par - ticipants often meaningfully inform merger review. Customer complaints are typically most influential; however, input from other industry participants can also be important in identifying non-reportable trans - actions or causing the Agencies to look more closely at certain aspects of a transaction. Third parties may challenge transactions in dis - trict court, although such actions are rare. See 1.3 Enforcement Authorities . 7.2 Contacting Third Parties The Agencies routinely seek input from customers, suppliers, competitors and other third parties to con - firm or complement staff’s competitive analyses of proposed transactions or remedies. The Agencies frequently interview customers, suppliers and com - petitors. The Agencies may also issue subpoenas for depositions (DOJ) or investigational hearings (FTC) and frequently request documents and information from third parties either voluntarily or through Civil Investigative Demands (CIDs) and subpoenas. 7.3 Confidentiality All materials submitted by the Acquiring and Acquired Persons under the HSR Act are confidential by statute and are exempt from disclosure under the Freedom of Information Act. Materials are subject to public dis - closure only if the transaction is challenged by one of the Agencies. The “fact of filing” is also confidential, unless disclosed by the parties themselves, or unless early termination is requested and granted, in which case the parties’ names are published in the Federal Register and on the FTC’s website. Additionally, con - fidential information may be disclosed to a committee or subcommittee of Congress. The confidentiality of information obtained from third parties through informal phone calls and meetings, or through formal Civil Investigative Demands (CIDs), and the identity of third parties under either process, is statutorily protected.
July 2020 statement on the closing of its investigation of London Stock Exchange Group and Refinitiv. Challenges to mergers are public. Complaints are filed in federal district court (and in the case of the FTC, Part 3), and appear on public court and agency dock - ets. In addition, the Agencies make press releases when challenging mergers. Court and Part 3 decisions in merger challenges are on the public record. Highly confidential information may be redacted from the complaints, decisions and other filings. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions The Agencies may seek remedies or challenge foreign- to-foreign transactions where the transactions impact US markets. For example, in June 2021, the DOJ filed suit to block UK firm Aon plc’s proposed USD30 bil - lion acquisition of UK company Willis Tower Watson, alleging the transaction would eliminate competition in US markets by merging two of the “Big Three” global insurance brokers. Shortly after the DOJ filed suit to block the transaction, Aon and Willis abandoned the merger. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications Parties must submit the transaction agreement, as well as any agreements not to compete and any other agreements between the parties, with their HSR filings. The Agencies will review the transaction as a whole and may raise concerns about ancillary restraints in the review process. Recently, employ - ment-related non-compete agreements have been a particular focus of review. Typically, parties amend ancillary agreements rather than jeopardise clearance of the entire transaction.
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