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Guidelines for Financial Buyers of Antitrust Divestitures

Nathaniel L. Asker, The M&A Lawyer, Volume 19, Issue 10, November/December 2015

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In transactions raising signi-cant antitrust issues, divestiture of one -rm’s business in the overlap market(s) at issue can often resolve the antitrust authorities’ concerns while permitting the parties to proceed with the remainder of the deal. Such divestitures present an excellent opportunity to acquire assets at attractive prices. In addition, several aspects of these sales would appear particularly appealing to financial buyers:
- timelines that reward experienced buyers able to move quickly and decisively;
- limited competition from strategic buyers due to regulatory concerns; and
- opportunities to acquire attractive assets that might not otherwise go on the market.
Notwithstanding these factors, private equity and other -nancial buyers have played a limited role as acquirers of antitrust-mandated divestitures to date, with mixed success. This article examines the U.S. antitrust agencies’ goals and concerns in evaluating proposed -nancial buyers of divestiture assets and analyzes recent examples of both cautionary tales and success stories, with the goal of providing practical guidelines for -financial buyers considering competing for this unique asset class Financial buyers that can successfully navigate the agency review process may find that rewards are significant.

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