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Antitrust Limits on Pre-Closing Conduct in Mergers and Acquisitions
In track, a runner “false starts” or “jumps the gun” when he or she begins running before the gun has sounded. A similar concept occurs when two competing firms that have agreed to merge begin coordinating their activities or combining their distribution networks before the merger closes. In track, the runner who gun jumps may be disqualified from the race. For a transaction, the penalties for gun-jumping include fines, injunctions and potentially prison terms. Thus, an understanding of what merging firms can and cannot do before the gun sounds is critical to the merger process.
Gun Jumping
The concept of gun jumping in the merger context arises from the general Sherman Act prohibition on contracts, combinations or conspiracies that unreasonably restrain trade. Consider, for example, two competitors who sell widgets. Anyone who has attended an antitrust compliance course knows that the two companies cannot agree on the price of their respective products and cannot allocate customers or prospects between themselves. Similarly ' at least outside the merger context ' a firm would not give its competitor's sales manager an office in its sales department, it would not give the competitor's CEO the opportunity to voice opinions about possible acquisitions and it would not direct some of its customers to a competitor's distributors.
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