The French Competition Authority ("FCA") has unconditionally authorized the acquisition of furniture retailer Conforama by Mobilux under the failing firm defence ("FFD"). On 8 July 2019, Mobilux group ("Mobilux")...more
The Comisión Federal de Competencia's new guidelines clarify notification requirements for joint ventures and the "failing firm" defense. Newly revised merger control guidelines ("Guidelines") from the Comisión Federal de...more
On June 23, we hosted a webinar on the failing firm defense, focusing on defining the defense and offering tips on complying with it. We also tried to demonstrate that, sometimes, the antitrust agencies will not demand strict...more
As the COVID-19 pandemic causes commercial and financial difficulties, an increasing number of transactions may involve companies in financial difficulty. ...more
The Federal Trade Commission (FTC) has reminded us that the “failing firm defense” is much harder to pull off than might be imagined, and that the antitrust agencies will closely analyze all “failing company” claims even...more
As many businesses look for solutions to weather the economic impact of the COVID-19 pandemic, one potential avenue for distressed companies is to seek to be acquired by a more stable firm looking to expand. ...more
The guidance includes a refresher on “failing firm” defence claims, for which the CMA will maintain a high bar. On 22 April 2020 the UK’s Competition and Markets Authority (CMA) published guidance on its assessment of...more
White & Case LLP argued the last successful fully-fledged "failing firm defence" case in Aegean/Olympic II in 2013. Our lawyers Assimakis Komninos and Jan Jeram, who acted in that case, with the help of Iakovos Sarmas1,...more
The first wave of discussion about the impact of COVID-19 on EU merger control was very much on the practical and procedural. What, impact if any, will the response to this crisis have on the substantive assessment of mergers...more
The fact that a merger might be anticompetitive is not a reason to prohibit a transaction if all of the elements of the “failing firm defense” are met, as described below. In fact, the antitrust agencies have long recognized...more
The “failing firm” defense as a justification for permitting a merger that may otherwise lessen competition gets considerable play in healthcare transactions. Perilous hospital economics—often brought on by low Medicare and...more
A new decision from a federal court in Delaware reinforces the high burden that parties face in insulating an otherwise anticompetitive merger based on the so-called "failing firm" defense. The Justice Department ("DOJ")...more