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Antitrust Compliance in M&A: Due Diligence, Pre-Merger Communications, Conduct Prior to Closing

Recording of a 90-minute premium CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
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Conducted on Wednesday, August 1, 2018

Recorded event now available

or call 1-800-926-7926

This CLE course will examine antitrust issues which can arise throughout key points of an M&A transaction. Panel discussion will include best practices for avoiding antitrust scrutiny during due diligence and pre-merger negotiations; antitrust provisions to include in the merger agreement; how to determine whether an antitrust filing is necessary; and conduct to avoid prior to regulatory approval and closing.


Antitrust issues can arise at various stages of an M&A deal. During due diligence, counsel should assess what antitrust risks the deal may present, including the competitive relationship between the parties. While certain information can be shared, parties with competing products or services, in particular, should avoid sharing “competitively sensitive information” (CSI) such as pricing information, strategic plans, future product offerings and customer-specific information.

Even with a merger agreement in place, the merging parties are still separate companies and must act accordingly. In some cases, a merger control filing may be necessary. While regulatory approval is pending, the parties should not go to customers jointly and sell products of the future, combined company, exchange CSI without proper safeguards in place, or integrate research and development efforts. Counsel should closely monitor any interactions between the parties, and safeguards should be established, until regulatory approval and closing.

Listen as our authoritative panel discusses the key antitrust issues that should be considered upfront in any M&A transaction, with particular focus on best practices during due diligence and pre-merger negotiations and post-signing planning.



  1. Antitrust laws against information sharing: Clayton Act and Sherman Act
  2. Enforcement agencies: Antitrust Division of the U.S. Department of Justice (DOJ), U.S. Federal Trade Commission (FTC)
  3. Due diligence: competitively sensitive information
  4. Pre-merger negotiations and communication
  5. U.S. Antitrust, as well as other jurisdictions, filings
  6. Permitted conduct from execution of agreement through closing


The panel will review these and other critical issues:

  • What kinds of information are considered “competitively sensitive information” for antitrust purposes?
  • How should merging parties handle the pre-signing due diligence and pre-closing planning processes to avoid antitrust scrutiny?
  • How should the parties determine when a filing is necessary?
  • What kinds of actions and communications are permitted between the parties before closing?


Bester, Matthew
Matthew J. Bester
Director of Competition Law
Macy, Creighton
Creighton Macy

Baker & McKenzie

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