Nov. 22, 2023

M&A Compliance Roundup

This year has seen regulatory developments affecting M&A. The DOJ unveiled its Safe Harbor Policy, offering the presumption of a declination to acquiring companies if they voluntarily disclose misconduct of the acquired company. The Federal Trade Commission and DOJ worked to update merger guidelines, with proposed changes related to the effect a merger may have on labor markets. Meanwhile, we delved into the compliance risks in M&A in Asia, and examined penalties imposed on Credit Suisse and Flutter Entertainment in connection with business entities they acquired. In this retrospective issue, we highlight our in-depth coverage, including lessons learned and practical takeaways, on M&A compliance developments.

Safe Harbor Policy Seeks to Encourage Self-Reporting of Issues in M&A Transactions

Through the DOJ’s Safe Harbor Policy impacting M&A, announced in October 2023 by Deputy Attorney General Lisa O. Monaco, acquiring companies receive the presumption of a declination if they voluntarily disclose misconduct of the acquired company to the DOJ. The new policy lays out department-wide standards for dealing with acquiring companies reporting and remediating malfeasance at target firms. With insights from attorneys at Miller & Chevalier, Morgan Lewis, Cadwalader and Ropes & Gray, this article evaluated what this development means for companies and their compliance advisors.

U.S. Regulators Focus on Labor Impacts in Proposed Antitrust Changes

The Federal Trade Commission (FTC) and DOJ have focused on the impact of competition on labor markets. Since January 2023, they have worked to update the Merger Guidelines and overhaul the premerger notification process, with a focus on the effect a merger may have on labor markets. The changes introduced may result in additional challenges where proposed transactions could affect worker mobility, wages or benefits, even if the merger may benefit consumers. The FTC has also floated a proposed ban on non-competes, which would oblige employers to alert current and past workers, including independent contractors, that such provisions no longer apply. In this article, we looked into the implications of the changes with help from WilmerHale and BakerHostetler partners.

Compliance for M&A and Third-Party Risks in Asia

An understanding of the region, proactive due diligence and appropriate controls are key to mitigating compliance risks in M&A in Asia. Acquiring companies are well-advised to assess risks according to the individual country and sector and have a proactive compliance program that addresses those risks. This article provided takeaways offered by Gibson Dunn attorneys during a firm program addressing suggested strategies for cross-border transactions in Asian countries.

M&A Lessons From the $388‑Million Credit Suisse Settlement

When Swiss bank UBS acquired rival Credit Suisse in June 2023 in a rescue takeover initiated by the Swiss government, it knew it was also acquiring the legal troubles of a financial institution on the brink of collapse. UBS’s takeover meant having to foot the bill for $388 million in combined penalties from a coordinated global resolution reached with U.S., U.K. and Swiss authorities. We spoke to Withersworldwide and MoloLamken lawyers about lessons that could be drawn from the penalties and the corrective measures that the regulators required. This article summarized their insights.

Red Flags and Multiple Acquisitions Yield a $4‑Million SEC Penalty for PokerStars Owner

Flutter Entertainment, owner of PokerStars and other gaming brands, agreed to pay a $4-million penalty to the SEC in connection with a predecessor company’s payments to consultants in Russia. Payments were made in an effort to have online poker legalized in that country. The case is remarkable given the length and breadth of the SEC’s investigation, as well as the imposition of a multi-million-dollar penalty despite cooperation, remediation and apparent self-disclosure. This article offered practical insights on the settlement from lawyers at Shoemaker Ghiselli & Schwartz, Debevoise & Plimpton, K&L Gates, Dechert, Wilson Sonsini Goodrich & Rosati, Miller and Calli Law.