Dealing with Regulatory Agencies

When representing a client involved in an industry that is subject to many regulators, antitrust lawyers must adapt and balance the story we are telling -- that the transaction is pro-competitive and efficiency enhancing -- to a variety of audiences. Some agencies look at competition issues much differently than others. For instance, in an energy industry merger, not only will the Federal Trade Commission or the Department of Justice Antitrust Division be involved, as likely will the Federal Energy Regulatory Commission, but state attorneys general from several states and state public utility commissions and their associated consumer advocates may also be involved. If there are nuclear units, the Nuclear Regulatory Commission may be relevant. The Securities and Exchange Commission may be involved, if the company is governed by the Public Utility Holding Company Act of 1935. Further, there may be foreign government agencies to deal with, since international operations may be involved.

To deal with all these agencies, the antitrust lawyer must balance and coordinate the competitive effects presentation. Sometimes, of course, simply answering just one regulatory agency can be a challenge. Having five or fifteen to respond to, and trying to decide how to balance and sequence the responses, is tougher. More significantly as an antitrust lawyer, you have to think about what concessions you are willing to make in order to get the deal through. What might be acceptable as a concession to one regulatory or enforcement agency may be totally meaningless to another. The ability to deal with multiple agencies and move the process along for a client is very challenging, requiring creativity, knowledge of the regulatory environment, and practical judgment.