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August 03, 2020

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July 31, 2020

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Antitrust Compliance with Transition Planning for Merging Parties

Once the parties to a transaction have signed a definitive agreement, there may be a sense that the parties can more freely share competitively sensitive information. However, until closing, the antitrust laws require that the parties continue to operate as two independent businesses. Nevertheless, the parties can engage in certain transition planning, but it must be done in compliance with the antitrust laws.

A general rule of thumb is that discussions that would affect the “ordinary course” of day-to-day business are not allowed. Discussions that are forward-looking, e.g., changes that will take place after the transaction is consummated, are allowed. These discussions should be limited to planning and avoid discussions that would dictate how a party should conduct its business prior to the close of the transaction. Thus, discussions between the parties prior to closing should focus on the planning of post-closing activities, rather than the coordination of business operations while the parties are independent competitors.

Nevertheless, it is common for parties to protect the “core transaction,” or the assets that are being acquired, through contractual provisions in the definitive agreement that require the seller to preserve those assets. While these provisions should not interrupt the “day to day” business operations of the seller, it might be appropriate to prohibit certain conduct (such as unanticipated and undisclosed bonuses offered to executive team members). Antitrust counsel should always be involved in creating contractual provisions that will protect against an erosion of assets.

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume IX, Number 318


About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

Patricia M. Wagner, Epstein becker green, health care, life sciences

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of Justice, and state antitrust authorities 

Advising clients on issues related HIPAA Privacy and security

Advising clients on issues related to state licensure and regulatory requirements