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Seeking more consistency in the antitrust review of international deals, regulators from the United States and European Union on Oct. 30 adopted a set of guidelines for coordinating merger investigations. The accord calls for companies to work with U.S. and EU antitrust regulators on the timing of the investigation, the distribution of evidence in support of the deal and the crafting of remedies. “The best practices we released today institutionalize important forms of cooperation between the U.S. and EU antitrust authorities on merger reviews and publicly confirm our commitment to cooperate closely with our friends across the Atlantic,” Assistant Attorney General Charles James said. “They complement the reforms we made to our own merger processes last fall and are in the interests of both consumers and the business community.” Antitrust lawyers generally support the accord, though they said much more needs to be done to harmonize standards used in the U.S. and Europe to evaluate deals. “We still need to get to the point where if we are not operating under identical standards, then at least they are compatible standards,” said Phillip Proger, a partner at the Jones, Day, Reavis & Pogue law firm in Washington. The regulators appeared to cede this point. In a statement they said officials from the antitrust division, U.S. Federal Trade Commission and European Commission will meet in the coming year to work on joint approaches to evaluating merger efficiencies and the competitive effects of deals in oligopolistic markets. The best practices call for the regulators to apprise each other of major developments in merger investigations. They also should offer the parties a chance to confer jointly with U.S. and EC investigators. The agencies also vow to share public documents with each other and their analysis of the market definition, efficiencies and competitive harms. They also pledge to coordinate on their requests for deal data and documents. On the subject of regulatory remedies, the agencies promise to seek solutions that would not impose competitive problems in markets outside their jurisdiction. They also urge the parties to coordinate remedy discussions with the U.S. and Europe, and they favor sharing information on proposed merger remedies. The accord calls for the agencies to better communicate, including notifying each other as soon as a major cross-border deal is filed. At the start of an investigation, senior officials should establish a schedule of regular consultations, including some in the initial 30-day period when U.S. officials must decide whether to close an investigation or issue a “second request” for information. Stephen Mahinka, a partner at Morgan, Lewis & Bockius in Washington, said the pact indicates that regulators are finally serious about collaborating on merger reviews. “This shows there is an intention to coordinate,” he said. “That is different than before where there was not a meeting of the minds.” A model for cooperation is the accord between the states, FTC and antitrust division, Mahinka said. This permits the state and federal agencies to coordinate reviews and permits companies to waive confidentiality provisions so the states may review Hart-Scott-Rodino Act antitrust filings. How many companies will take advantage of the accord is unclear. Steven Newborn, a partner at Clifford Chance in Washington, said only companies involved in the biggest mergers certain to get attention from the EC and the U.S. antitrust authorities would want to coordinate reviews. “Sometimes you don’t want to call attention to your deal,” Newborn noted. �Copyright 2002, The Deal, LLC. All rights reserved.

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