"Hot documents" are about to get hotter. In-house counsel and corporate development teams know how important documents can be to the merger review process: today, they are the first substantive basis regulators have to assess a new transaction.  What M&A teams might not know is that recent changes in merger enforcement mean that a far larger number of documents may be available to regulators in the near future – and that these documents will significantly influence the outcome of antitrust merger investigations. To account for the changes, companies will need to pay careful attention to document creation, including ordinary course documents, deal documents, and documents written by third parties, to mitigate the risk that the information in these documents will lead to greater scrutiny of a proposed transaction.

Changes to the Merger Enforcement Regime and Business Impact

Recently, the Federal Trade Commission (FTC) and Department of Justice (DOJ) announced important changes to merger enforcement policy which have significant ramifications for the way businesses (and their advisors) create, store, and delete documents.