July 21, 2020

#70 Would Anything Have Changed? The Use of the Failing Firm “Defense” in Merger Control

The implications of a merger are measured against the situation without the transaction going ahead. But what happens when the business being taken over is in difficulties? Courtney Dyer of O'Melveny & Myers in Washington, DC and Nicholas Levy of Cleary Gottlieb in London join Matthew Hall and John Roberti to discuss the application of the merger control rules to failing firms, including the impact of the coronavirus pandemic. Listen to this episode to learn more about the failing firm "defense" in merger control in the U.S., EU, UK and elsewhere.    

Listen to the episode:

Guests:


Courtney Dyer, Partner, O'Melveny & Myers LLP

Nicholas Levy, Partner, Cleary Gottlieb Steen & Hamilton LLP

Related Links:

Summary of UK CMA’s position on mergers involving ‘failing firms’ (April 2020)
https://www.gov.uk/government/publications/merger-assessments-during-the-coronavirus-covid-19-pandemic/annex-a-summary-of-cmas-position-on-mergers-involving-failing-firms

UK CMA investigation of Amazon's investment in Deliveroo (2020)
https://www.gov.uk/cma-cases/amazon-deliveroo-merger-inquiry

EU Guidelines on the assessment of horizontal mergers under the Council Regulation on the control
of concentrations between undertakings (2004)
https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52004XC0205(02)&from=EN

U.S. DoJ and FTC horizontal merger guidelines (2010)
https://www.justice.gov/atr/horizontal-merger-guidelines-08192010    

Hosted by:

Matthew Hall, Partner, McGuireWoods London LLP and John Roberti, Partner, Allen & Overy LLP