USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn
7.4 Co-Operation With Other Jurisdictions The USA has bilateral and/or multilateral co-operation agreements including commitments to consult and co-operate on competition matters and to properly maintain the confidentiality of shared information with 11 jurisdictions: Germany, Australia, the EU, Canada, Brazil, Israel, Japan, Mexico, Chile, Colombia and Peru. The Agencies have also entered into less-for - mal, non-binding memoranda of understanding with competition agencies in Russia, the People’s Republic of China, India and South Korea. The Agencies also co-operate through multilateral organisations includ - ing the Organisation for Economic Co-operation and Development (OECD) and International Competition Network (ICN). When competition issues span multiple jurisdictions, the Agencies may exchange views and information with their foreign counterparts; however, to share information submitted by the parties, the Agencies must first obtain a waiver of confidentiality. Parties typically agree to such waivers to appease enforc - ers and potentially avoid incompatible remedies. The Agencies have released a joint model waiver of con - fidentiality. 8. Appeals and Judicial Review 8.1 Access to Appeal and Judicial Review As discussed in 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions and 5.6 Issuance of Decisions , the Agencies must seek an injunction in federal district court to stop a proposed transaction from closing after the expiration of the HSR waiting period. The parties or the Agencies may appeal this decision to the federal court of appeals for the relevant circuit. The parties may also appeal adverse FTC Part 3 decisions to the full Commission and appeal Com - mission decisions to a federal court of appeals. 8.2 Typical Timeline for Appeals Appeals can take many months to conclude. Histori - cally, agency appeals have been rare, though the FTC increasingly has pursued appeals of merger litigation, including in their challenges of Novant Health’s pro - posed acquisition of two hospitals and Microsoft’s
acquisition of video game developer Activision Bliz - zard. 8.3 Ability of Third Parties to Appeal Clearance Decisions Third parties do not have the right to appeal an Agen - cy’s decision not to challenge a transaction. Third par - ties with standing may, however, bring a private action against the merging parties under the Clayton Act or Sherman Act. See 1.3 Enforcement Authorities . 9. Foreign Direct Investment/Subsidies Review 9.1 Legislation and Filing Requirements Foreign Direct Investment The Committee on Foreign Investment in the United States (CFIUS) is an interagency body that has juris - diction to review any transaction that may result in foreign control of a US business. CFIUS also has juris - diction over transactions that involve a foreign actor obtaining a non - controlling interest in certain types of businesses that are of special concern to US national security (referred to as “TID” businesses since they involve “critical Technologies” or “critical Infrastruc - ture” or the collection or maintenance of “sensitive personal Data” of US citizens). Most CFIUS filings are voluntary, but a filing is mandatory for acquisitions in which (i) a foreign government actor will obtain a sub - stantial interest in a US TID business, or (ii) any foreign actor will acquire an interest in a US business asso - ciated with technologies that require US regulatory authorisation for export or transfer. CFIUS can impose penalties for a failure to file a mandatory transaction. CFIUS evaluates each transaction it reviews along three dimensions: • the ability and intention of the acquirer to harm national security (“threat”); • the degree to which the target US business is susceptible to exploitation by the acquirer (“vulner - ability”); and • the reasonably foreseeable impact on US national security (“consequence”).
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