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ABA Antitrust Law Podcast: Would Anything Have Changed? The Use of the Failing Firm “Defense” in Merger Control

July 20, 2020

O’Melveny antitrust partner Courtney Dyer joined an episode of the American Bar Association’s Our Curious Amalgam podcast for a discussion on merger control rules as they apply to distressed firms and the impact of the coronavirus pandemic worldwide.

In this episode the participants discuss recent case studies across the US and EU and what criteria is needed for horizontal mergers to be successful. “[In the US] horizontal merger guidelines have been published by the DOJ Antitrust Division and the FTC,” said Dyer. “There are three factors that are numerated rather clearly [in those guidelines]; the first element is that the firm is unable to meet financial obligations in short order, the second one is that the firm can’t reorganize successfully in bankruptcy, and the third prong is that the firm made good faith efforts to find an alternative purchaser with less antitrust risks, but those efforts were unsuccessful.”

Listen to the full episode here.