Proposed mergers between large corporations are often reported and analyzed in the financial and business news. Hand-in-hand with those mergers are antitrust considerations, including possible civil enforcement of the antitrust laws by the U.S. Department of Justice. When enforcement of these laws results in divestiture, the Antitrust Division may seek the appointment of a Monitoring Trustee as part of the merging parties’ agreement. This type of settlement is unique because it involves not only the parties to the lawsuit, but a non-party entity as well – the company that purchased the assets required to be divested.
Accordingly, the role of the Divestiture Monitoring Trustee is unique as well. The Divestiture Monitoring Trustee may be given broad authority to ensure compliance with the final judgment, the terms of which may require monitoring over a period of years. This entails laser focus, strong judgment, a clear understanding of the parties’ interests, and the ability to discern the need for validation and/or testing when appropriate to ensure that all parties are fulfilling their obligations with respect to the divestiture. Our philosophy is to conduct these activities while keeping in mind the the day-to-day needs of the business and making sure that our actions to not overburden or negatively impact the divestiture asset.
Our team has significant experience serving as a Divestiture Monitoring Trustee including recent appointments involving companies across a broad spectrum of industries. Our monitoring team is comprised of former federal prosecutors, compliance experts, investigators, data analytics experts, and forensic accountants. We have assisted with several large divestitures both inside and outside the government and are aware of problems that commonly arise in such cases.
The experiences and diverse backgrounds of our professionals offers a unique perspective to navigate the various aspects of Divestiture Monitorships. We understand that certain requirements of the final judgment are time-sensitive and command immediate attention while others may need long-term monitoring and validation plans. Using a balanced and strategic approach, our team develops a targeted, streamlined, and effective work plan based on the specific requirements of each final judgment. We work with a combination of industry experts, internal and external resources, and proprietary technology tools to provide results and preserve the value of the assets.