3 2
OTHER PRE-MERGER RULES APPLY
Moreover, even where a transaction is not
reportable, or does not require agency
clearance, the parties must still comply
with other competition rules in the pre-
merger phase. This is true in the U.S.,
where the FTC issued updated guidance
in March 2018 regarding information-
sharing between merging parties before
a transaction closes.
The guidance addressed what antitrust
authorities refer to as gun-jumping,
e.g., pre-closing sharing of competitively
sensitive information or coordinated
business activities, which can violate
the HSR Act as well as substantive
antitrust laws. The guidance explains
that "[u]nlawful gun jumping may
include the exchange of competitively
sensitive information, but it typically also
involves actual coordination of business
activities" prior to HSR clearance. The
guidance included a discussion of past
enforcement activities that illustrate,
among other things, that the FTC will
bring antitrust enforcement actions
against anti-competitive conduct that
is separate from the merger's own
competitive effects. For example, the
guidance highlighted the FTC charging
aluminum tube manufacturers with FTC
Act violations because they shared
competitively sensitive information during
due diligence. The FTC then separately
challenged the merger itself as anti-
competitive. Ultimately, the FTC required
the buyer to divest two mills.
MERGER CONTROL
05
G U N - J U M P I N G C A S E S
C A N B E B R O U G H T
A G A I N S T M E R G I N G
PA R T I E S T H A T D O N O T
E V E N C O N S U M M A T E
T H E I R D E A L
Risks for Consummated
Deals Even Where No
Notification Requirements
