Mergers and Acquisitions

Crowell & Moring has successfully handled the antitrust clearance of some of the largest and most complex mergers and acquisitions in recent history. We pride ourselves on guiding our clients through the successful review of their most important strategic transactions. Our track record of consistent success speaks for itself.

We have one of the largest and most active antitrust mergers and acquisitions practices around. While many firms would consider handling one second request a year an active practice, it is not uncommon for Crowell to handle several second requests each year. In fact, in the past five years, Crowell & Moring successfully handled 14 second request investigations. In many other instances, we were able to avoid the issuance of a second request altogether.

Our mergers and acquisitions practice takes clients from antitrust planning in the initial stages of a transaction, through the Hart-Scott-Rodino premerger notification process, responding to second requests from the FTC or DOJ or investigative demands by state attorneys general, negotiating or litigating final resolution of antitrust issues, and representing clients in federal court Tunney Act proceedings to secure final approval of merger remedies reached with the government. We have also represented clients in a broad range of joint ventures, collaborations and marketing and distribution alliances.

Our strategy is to form long-standing client relationships and to invest in developing expertise in our clients' businesses. We use that knowledge to identify which transactions are likely to attract significant scrutiny, and to prepare our clients to manage the merger review process, rather than be managed by it. Where appropriate, we begin the advocacy process in advance, positioning the company to respond quickly to any demands for documents and information, to avoid delays to the transaction's consummation. We have deep experience working with the antitrust and competition agencies and, where necessary, are prepared to litigate a government challenge.

We represent large and small clients in all sectors of the economy, from telecommunications to chemicals, from health care to energy, aerospace, media, agriculture, finance, consumer goods, and many others. Some of the leading transactions handled by our group include:

• AT&T, serving as co-lead counsel in the regulatory review of its $39 billion acquisition of T-Mobile
• AT&T, in its $86 billion acquisition of BellSouth
• SBC Communications and Cingular Wireless, in their $41 billion acquisition of AT&T Wireless (the largest all-cash transaction in US history)
• DuPont, in its $6.3 billion acquisition of Danisco
• Rio Tinto, in the divestiture of U.S. coal assets
• Reed Elsevier, in its $4.1 billion acquisition of ChoicePoint
• E.I. DuPont de Nemours, in its $4.4 billion divestiture of the Invista fibers business to Koch Industries
• E.I. DuPont de Nemours, in its acquisition of First Chemical Corporation
• Harbinger Capital Partners, in its proposed acquisitions of SkyTerra Communications and Inmarsat plc
• Metsäliitto Group, in its divestiture of M-real Corporation
• United Technologies, in its $1.8 billion acquisition of the GE Security business
• United Technologies, in its $2.8 billion acquisition of Kidde plc
• Sierra Health Services, in its $2.6 billion acquisition by UnitedHealth Group

One of our sub-specialties, not surprisingly, given the firm's national reputation in government contracts law, is handling transactions involving aerospace, defense, intelligence and other government contractors. These transactions often raise distinct substantive and procedural issues, and require coordination between DOJ/FTC and DOD, NASA or other government agencies. Our track record in these industries includes representing UTC/Pratt & Whitney in its acquisition of Boeing's Rocketdyne liquid space propulsion business, along with many confidential intelligence industry transactions.

Multi-Jurisdictional Transactions

Crowell & Moring has significant expertise in assessing international merger control and competition filing requirements. We work closely with a strong network of local counsel to coordinate and manage competition filings and clear transactions around the world. In the past two years alone, we have successfully handled transactions that required filings in Brazil, Canada, China, Germany, Italy, Korea, Russia, South Africa, Turkey, Taiwan and several other jurisdictions.

For more information visit our European Competition Law practice.

Joint Ventures & Teaming Agreements

We also have extensive experience handling the antitrust issues related to the formation of joint ventures, teaming arrangements and other competitor collaborations. Unlike mergers and acquisitions, these transactions raise additional issues of ongoing relationships between existing competitors. Our attorneys analyze potential joint ventures and work with clients to accomplish their business goals while managing the antitrust risk. Examples of our prior representations include:

• Alcoa, in the formation of its purchasing joint venture, Evermore Recycling
• Pratt & Whitney, in the formation of aeroengine joint ventures with General Electric and Rolls Royce
• E.I. DuPont de Nemours, in the formation of its biotech trait and genetics licensing joint venture, Greenleaf Genetics, with Syngenta
• Bank of America, Citigroup, Credit Suisse, Deutsche Bank, Goldman Sachs, JPMorgan Chase, Merrill Lynch, and UBS in the formation of trading platform ICE US Trust
• Sikorsky, in its teaming arrangement with Lockheed Martin to support helicopters for the US Navy
• DuPont, in the formation of its soy nutrition ingredients joint venture Solae

Third-Party Involvement In Merger Investigations

Antitrust authorities throughout the world increasingly rely on third parties (including customers, suppliers, and competitors) to inform their merger review and analysis. This process provides industry participants with an opportunity to advocate competitive concerns and seek appropriate conditions. But it also can expose them to burdensome document and information requests.

Crowell & Moring has represented numerous third parties in this context. We work with our clients to assess a transaction's potential impact on its business, develop strategies for whether and when to reach out to the reviewing agency, and evaluate how to respond to agency inquiries, effectively presenting the client's views consistent with its over-arching business objectives. We also develop strategies for protecting the confidentiality of those views, and narrow the scope of agency requests to limit the burden and expense of compliance. Depending on the client's interests, participation may range from simply providing facts, to more aggressively expressing substantive concerns with the competitive impact of the proposed transaction. Within the past few years, we have represented third parties in over a dozen major transactions where we developed and implemented affirmative strategies to express concerns, including providing significant factual presentations, utilizing economic experts, drafting declarations and submitting white papers.

For more information about our mergers and acquisitions and joint venture practice, please contact Wm. Randolph Smith, Robert Lipstein, Jeane Thomas, or Christopher Ondeck.

Highlights