“E-Merging”: Mergers and acquisitions in today’s era of big data

Corporate mergers and acquisitions make a comeback

Corporate mergers and acquisitions are now making a comeback after a screeching halt during the global financial crisis. In 2013, this upswing coincides with the new realities of “Big Data” in corporate America. By 2020, it is projected that organizations will deal with fifty times more information than they are managing today. The combination of these situations—troves of digital records and more companies seeking governmental merger approval—creates the imperative that corporate counsel pay special attention to e-discovery practices, now more than ever before.

Before a Merger

  • As documents are collected in response to the Second Request, be mindful of the possibility that the electronic data collected can be used to oppose the any attempt to block the deal. Identify and organize helpful and harmful documents.
  • Be aggressive in requesting meetings with the government to address substantive competitive concerns and be prepared to support positions with documentary evidence and economic analysis.
  • In the unusual event that the government challenges the merging companies certification of substantial compliance with the Second Request, electronic document \management becomes vitally important. If the parties to the transaction have been proactive and organized in their approach to electronic data throughout the review process, ediscovery will be much easier at this critical stage.

    Further, it is important to note that today many merging companies have operations outside of the US, and in many deals there is a corresponding requirement outside the US for pre-merger notification and compliance similar to that required by the HSR Act in the US. The Canadian Competition Act, for example, amended in 2012 to align more closely with the US pre-merger regime, can result in issue of a Supplemental Information Request (SIR), which can be as or more document-intensive than an HSR second request.

    Contributing Author

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    Michele Lange

    Michele C.S. Lange is the director of thought leadership and industry relations for Kroll Ontrack. In this role, she regularly writes and speaks on topics...

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