Articles

Danyll Foix Article Explains Why "Failing Firm" Defense Could Not Save Waste Companies' Deal

Articles / August 22, 2017

Partner Danyll Foix authored an analysis published by Law360 on July 19, 2017. The article, “The ‘Failing Firm’ Defense: Pointers from a Blocked Deal,” offers insight into the failed deal between EnergySolutions and Waste Control Specialists. A federal judge ruled that the terms of the acquisition agreement precluded the parties from relying on the “failing firm” defense to save the deal from being blocked on antitrust grounds.

Foix’s article discusses the deal and the “failed firm” arguments, and concludes:


“The blocked EnergySolutions/WCS merger provides a few pointers for parties considering acquisitions that are likely to draw scrutiny from antitrust enforcers. Most obviously, parties that anticipate relying on a failing firm defense should avoid transaction provisions that hinder a thorough, good-faith process for identifying potential buyers. This does not mean that parties cannot agree to exclusive negotiation, or no-talk, terms. Rather, such terms may be adopted after completing a process that confirms the lack of reasonable alternative buyers for a failing firm. And if that is not possible, the parties still may be able to prove there were no alternative buyers through post-transaction evidence or cooperation with the enforcers.”

Read the article (registration required).

Blog

In The Blogs

Previous Next
Antitrust Advocate
The Trump DOJ’s View on Merger Enforcement and Remedies Explained
November 20, 2017
President Trump’s head of the Department of Justice’s Antitrust Division, Makan Delrahim, recently explained that the division will cut back on behavioral commitments such as consent orders regulating conduct and will instead rely more on...
Read More ->
Antitrust Advocate
Supreme Court to Decide First Antitrust Case in Two Years
November 9, 2017
On Oct. 16, the U.S. Supreme Court granted certiorari in United States v. American Express, the court’s first antitrust case of the 2017 term and the first antitrust case they have reviewed since 2015. The American Express case presents...
Read More ->
Antitrust Advocate
Antitrust Partner Dan Foix to Present at Upcoming AAI Conference
October 31, 2017
Danyll Foix, an antitrust partner in BakerHostetler’s Washington, DC office, will be a speaker at the 11th Annual Private Enforcement Conference of the American Antitrust Institute on November 7, 2017. Foix will join a panel discussion of...
Read More ->
Antitrust Advocate
Presidential Powers and Antitrust Politics: Part Three
October 13, 2017
In July and August, we discussed the president’s role in setting antitrust policy at the Department of Justice, Antitrust Division. Specifically, we pointed out that presidents routinely face competing domestic and foreign policy...
Read More ->
Antitrust Advocate
Recent Investigation Closing Suggests FTC’s Process Reforms Might Be Meaningful
October 4, 2017
Back in April, we reviewed several new initiatives within the Federal Trade Commission (FTC) focused on eliminating “wasteful, legacy regulations and processes that have outlived their usefulness,” including “process reforms” for civil...
Read More ->