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.
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For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte: