CHILE Trends and Developments Contributed by: Claudio Lizana, Daniela León, Tomás Appelgren and Thomas Stöcklin, Estudio Lizana
Disney/Fox In the first case, concerning the Disney/Fox merger, the FNE cleared the transaction, but then filed a lawsuit with the TDLC seeking the imposition of a fine against TWDC Enterprises 18 Corp (“Disney”) amounting to approximately USD4.3 million. The FNE claimed that Disney violated Article 3 bis(e) of DL 211 because it failed to disclose relevant internal documents during the merger investigation. Specifically, the FNE held that the infringement occurred because Disney ini - tially stated that it had no internal documents analysing the affected market – which must be provided as part of the merger filing according to the applicable regulation – and then reported that it only had two of such documents. Later, however, the FNE determined that Disney was in possession of at least thirty studies, analy - ses, reports, surveys, or comparable documents containing information directly related to the affected market. The TDLC accepted the FNE’s claim and fined Disney 3,000 UTAs (approximately USD2.5 million). Disney appealed this decision to the Supreme Court, and its final ruling is still pend - ing. CCA/OK Market In the second case, the FNE filed a lawsuit against Cadena Comercial Andina (CCA) for pro - viding false information during the merger inves - tigation involving the acquisition of OK Market (a convenience store chain) and requested the imposition of a fine of 6,500 UTA (approximately USD5.5 million). According to the FNE, CCA did not submit all the internal background documents analysing the affected market, just like in the Disney case.
Initially, CCA stated that only six documents existed, but subsequently, through a supplement to the notification, CCA disclosed 34 additional documents, which were not originally submit - ted. Ultimately, the FNE found that there were at least 60 additional documents that clearly met the criteria and were not submitted in a timely and proper manner. The TDLC has not yet issued a final ruling in this case but is expected to do so shortly. These cases are interesting because they dem - onstrate that, in the FNE’s view, failure to pro - duce internal documents relevant to its inves - tigation is a serious infraction, and that the authority is prepared to pursue the liabilities associated with this conduct, even if the merger is ultimately cleared. Indeed, this is an infringe - ment that deserves a separate analysis from the substance of the notified concentration. It is also important to note that the TDLC’s ruling in the Disney case fully aligns with the FNE’s view on this matters, stating that the offence set out in Article 3 bis(e) does not necessarily require the manipulation or tampering of information, but can also be confirmed by providing any infor - mation that is “untrue, erroneous, incorrect, or inaccurate.” This would have happened in the Disney case, since the company claimed not to have the documents required by regulation, which turned out to be untrue. Because of the above, companies must take maximum care and diligence when notifying a concentration to the FNE, without omitting any information or document required by the appli - cable regulation, because any claim of not hav - ing certain background information, without this being true, may involve sanctions.
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