FTC Offers Advice on Avoiding Violations in Pre-Merger Negotiations and Due Diligence

By Thomas Donovan

The Federal Trade Commission (“FTC”) recently published advice to businesses on avoiding violating the antitrust laws during merger negotiations and due diligence. Businesses engaging in mergers, acquisitions, and joint venture discussions need to be cognizant of antitrust issues in addition to whether the deal would significantly impair competition and therefore prompt a challenge to the consummation of the deal under Section 7 of the Clayton Act. They also need to assure that they do not either violate Section 1 of the Sherman Act through the disclosure between competitors of competitively sensitive information or violate the Hart-Scott-Rodino Act by effectively transferring de facto control before the expiration or termination of the mandatory waiting period under the Hart-Scott-Rodino Act.

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