Claudia Higgins Offers Antitrust Advice to Counsel Handling Global M&A Work in InsideCounsel

InsideCounsel reports that the amount of cross-border mergers and acquisitions between businesses is at an all-time high since the end of the global financial crisis. As the numbers continue to rise, in-house counsel should expect more M&A work and learn how to deal with these transactions in order to ensure their corporations can handle the rising number of deals, as well as any litigation that could follow.

According to Kaye Scholer Antitrust Partner Claudia Higgins, formerly Assistant Director for Regional Litigation at the Federal Trade Commission, it helps to have counsel that knows the insides of the regulatory agencies and how they function. “I have some counsel on the other side of deals from me who are very fine antitrust lawyers analytically, but half of the transaction antitrust review is figuring out procedurally how best to work with the investigation and investigators,” she said. “That depends on understanding how the agency works. It doesn't have to be that you know the particular person, but you have to understand their viewpoint intrinsically.”

However, even with a well-rounded and knowledgeable deal team, litigation is still possible after a deal has been brokered. In situations where litigation does occur, Higgins advised lawyers to use honesty and truthiness with antitrust agencies, adding, “if they ever find out that you didn't give the full answer, that will make the agency investigate your client even more meticulously. A merger investigation is filled with evidence, but the evidence isn't as detailed as you find in a real courtroom. There's a lot of room for the investigator and defense lawyer to develop a sense of trust so you don't have to [go the cost and time-consuming effort to “prove”] 100 percent of what you say.”