Lee Greenfield, Hartmut Schneider, Gannam Rifkah and Georgia Tzifa penned an article on identifying and obtaining antitrust authorities’ approval of a suitable divestiture buyer, which was featured in Global Competition Review’s (GCR) Merger Remedies Guide – Fourth Edition.
In the piece, titled, "Identifying a Suitable Divestiture Buyer and Related Issues," the authors note that antitrust identification and approval are critical aspects of deal planning and successful execution when an antitrust authority may insist on a divestiture remedy. Additionally, the authors emphasize that identifying and persuading antitrust authorities to accept a divestiture buyer can be a complex and challenging process, especially given the antitrust authorities’ intensive scrutiny and sometimes skepticism of proposed buyers, which show no sign of abating.
“As merging parties seek to identify and vet suitable buyers, it is crucial that they focus on the two fundamental questions – whether a whether a potential buyer has the capabilities and incentive to replicate pre-merger competition and whether a divestiture to that potential buyer would create its own antitrust concerns – and the issues that those questions typically encompass,” the four lawyers wrote in the chapter. "Early planning and ensuring that evaluation and gaining approval of a divestiture buyer is a central part of the merging parties’ antitrust clearance strategy, which can pay off enormously by avoiding unnecessary delay, loss of deal value, or even failure of the primary transaction."