Getting The Tough Deal Done: The Roles of The General Counsel and Outside Antitrust Counsel
Craig Waldman, Aimee DeFilippo, Apr 29, 2013
The merger approval process can be a challenging experience, especially in tough deals that prompt extended antitrust investigations. Long wait times, high costs, and the resulting uncertainty for the parties, their employees, customers, and investors about whether and when the deal will be consummated can make it difficult to hold a transaction together during a prolonged merger review. Adding further complexity is the global nature of M&A, as transactions with international implications can be particularly taxing on the parties.
It is obvious that managing a company through this process takes careful planning, hard work, and strategic thinking. What may be less obvious is the critical importance of close coordination and transparency between a company's general counsel ("GC") (or other in-house counsel responsible for the antitrust investigation) and its outside antitrust counsel. Few GCs have the time or the specialized expertise to advise merging companies on the myriad of issues encountered during a lengthy merger investigation, but they will be accountable to the Board and company for having set proper expectations and for ensuring that the merging companies interact with each other within the proper antitrust boundaries. A closely aligned outside counsel can be a valuable asset for a GC during what can be an arduous process. What is key is for outside counsel to not only be responsive to the GC's concerns, but also candid and direct about the likely outcomes and creative in developing solutions to accomplish the company's goals.
This article both describes the challenges GCs face during the merger review process, and suggests the optimal ways in which the GC and outside counsel can collaborate in order to maximize the chances of a successful result.