Monitoring the Evolution of Cross-Border Merger Control

The panel focused on the issue of managing multi-jurisdictional mergers during a time when authorities are placing organisations under more rigorous review when filing for merger clearance. On our panel we covered several notable trends surrounding the complex data issues in these matters, including:

• Complex and large-scale document collection and review requirements have become normalised, with counsel now much more attuned to the pressures they may face if a deal is expected to be scrutinised. Only a few years ago, outside counsel and corporate IT teams would often look to support the straightforward Phase I document requests themselves, and would then be left scrambling when a large-scale, custodian-level request for information covering multiple years was issued. Our team has increasingly been brought in much earlier to help counsel and the corporate team understand the expectations of the authorities around the document and data requests. As the market further adapted to the landscape of challenges over the past 18 months, outside, expert forensic technology support became a standard feature of a merger clearance review.

  More recently, that trend is shifting even earlier, and FTI Technology is seeing more clients bringing in document collection and review support at the pre-notification stage, when counsel is assessing a deal’s potential competition issues. At this stage, teams can test potential search parameters, conduct initial privilege reviews and start to gain an understanding of what information is in their documents ahead of any requests from an authority reviewing the deal. Given the very short timeframes parties are given to produce documents to the CMA and the Commission, this shift to earlier consideration of documents is helping companies shape their strategies based on what’s in their documents and thus reduce the risk of producing documents without awareness of what information is being disclosed.

• Merging parties are increasingly responding to investigations in lock step with each other. At FTI Technology, we’ve seen an increase in matters where our teams are engaged separately by both parties in a transaction. This allows for alignment on timing, structure and the overall strategy for engaging with the authority reviewing the deal. It also allows for both parties to use the same formats for the information disclosed to regulators, so, for example, the same metadata fields can be produced and consistent information can be included in the privilege logs. These details can help to streamline the review for all involved and reduce the potential for confusion when regulators are assessing disclosed materials.

• Detailed reviews of documents are increasingly having to be conducted post disclosure. Due to the short 14-day turnaround required by the Commission, it’s rare for organisations to have undertaken a full review of all the documents produced; they’re typically limited to reviews to identify the privileged and private materials that are to be held back. By conducting helpful/harmful reviews post disclosure, counsel are gaining an understanding of the documents that might impact the case, or that risk triggering a separate inquiry for behavioral issues. The advent of these helpful/harmful reviews post production helps with developing a proactive strategy for addressing those issues before the authorities pursue them. 

  In helpful/harmful reviews, FTI Technology’s experts have begun experimenting with the use of human-led generative AI. When applied with the right consulting support from FTI Technology’s AI experts and specially designed workflows, generative AI can help review teams rapidly surface certain issues of concern and build fact-based narratives around the information that has been disclosed to authorities and adapt their strategy accordingly.

Though intense, high-pressure internal document reviews are now becoming standard in the field of cross-jurisdiction merger control, they are also becoming more challenging for a variety of reasons. Increased deal scrutiny, more rigorous internal document reviews and data volume and format complexities are making it more difficult for organisations to respond to merger review requests, complete them in a timely manner and mitigate the risk from the document contents. Proactive attention to data-related issues and involvement of experts with specific competition, antitrust and merger clearance expertise early on have become necessities in ensuring the right response.

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The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, its management, its subsidiaries, its affiliates, or its other professionals.