Impact on antitrust enforcement decisions

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Reference no: EM133498019

Question: Bankruptcy Law's Impact on Antitrust Enforcement Decisions

The antitrust enforcement agencies have made clear that transactions driven by COVID-19-related financial distress will be analyzed no differently than transactions involving other financially distressed firms. Where the acquisition of a distressed firm by a competitor threatens substantially to lessen competition, the fact that the buyer offered appreciably more for the business than did other bidders is irrelevant.

The parties may argue that for antitrust purposes, the bankrupt firm is a "failing company" whose acquisition will not impair future competition in the relevant market. To establish status as a "failing company," the debtor must prove to the district court that, among other things, the firm made unsuccessful good faith efforts to elicit reasonable alternative offers that would have posed a less severe danger to competition. The agencies regard any offer above liquidation value as "reasonable," because such an offer signals that the buyer intends to keep the assets operating in the relevant market.

Reference no: EM133498019

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