Three Key Issues for Managing Discovery in Global Merger Investigations. Coordinating Multijurisdictional Antitrust Reviews in Light of New Developments in UK and EU Merger Control Investigations

Abstract

For counsel charged with securing antitrust clearances in multijurisdictional transactions, the conventional wisdom long has held that US, UK, and European regulators follow different paths for investigating the same M&A deal. In the US, the Department of Justice’s Antitrust Division (‘DOJ’) and the Federal Trade Commission (‘FTC’) rely heavily on gathering ordinary-course internal documents and data from the transaction parties and other industry participants, often amassing millions of pages of records in ‘Second Request’ investigations of strategic transactions. The UK and European Union processes, in contrast, historically have placed greater emphasis on detailed written submissions from the parties and other industry participants, while issuing comparatively few requests for ordinary-course company documents. These conventions are changing. In recent years, both the Competition and Markets Authority of the UK (‘CMA’) and the Directorate General for Competition of the European Commission (‘EC’) have placed greater emphasis on evaluating internal documents and data to aid their analysis of strategic transactions. Both Agencies have called on transaction parties (and third parties) to provide more of these materials during the merger review process. In certain complex cases, the CMA and EC have made ‘Second Request-like’ requests for information, requiring the merger parties to apply agreed-upon search terms against the parties’ email and other electronic data systems, capturing hundreds of thousands, even millions of documents in the process.1