DealLawyers.com Blog

The HSR notification form requires the parties to furnish all documents that were created or received by directors or officers in connection with evaluation of a transaction, and discuss topics such as markets, market share, and competition. Transaction planners are usually warned about the need to disclose this information to regulators, and to avoid creating documents containing hyperbolic statements about the deal.

All too frequently, somebody won’t get the memo – and you’ll end up finding some sort of “this deal will allow us to take over the world” document that reads like it was written by a corporate supervillain. Now Dechert has come up with a new tool to help identify potentially problematic documents and prevent them from being generated in the first place. It’s called “Boiling Points,” and it’s a collection of real-world documents that government antitrust agencies used to support enforcement decisions against merging companies. The illustrations help to identify “hot content” that is likely to attract regulatory attention during the merger review process. Examples include such gems as the following:

– “The combined firm will be a 900 lb. gorilla”
– “The acquisition is a blocking maneuver so that our largest competitor doesn’t get acquired by a well-funded competitor”
– “Literally, no other competitors”
– “Creates significant competitive barriers to entry and protects our flank”
– The acquisition will eliminate a rival “poised for transformational growth”

I could go on – and Dechert does, for 126 pages! The collection is organized by the kind of common deal analyses that often lead to problematic statements: descriptions of the combined firm, descriptions of the seller, discussions of deal rationale, synergies and valuation, pricing or financial analysis and antitrust risk. The collection is intended to serve as a training tool, and includes tips on how and when to use the illustrations for that purpose.

– John Jenkins