Better Assessment of UK Merger Control Risk

Mergers and acquisitions involve the potential for the relevant competition authorities to scrutinise a deal and, if they think it may harm competition, impose remedies or prohibit it altogether.

This article focuses on merger control in the UK, by the Competition and Markets Authority (CMA).

The better the assessment of these intervention risks (sometimes known as ‘merger control risks’) the better the judgments companies are able to make on matters such as:

  • whether to go ahead with a putative transaction or to re-shape it to mitigate the potential competition risks
  • whether or not to notify deals to the CMA
    • (it’s worth noting here that non-notified deals called in for examination by the CMA were at record numbers in 2018)
  • what they need to do to manage and mitigate risks, both before and during an investigation – recognising the potential for unwelcome surprises, including:
    • unexpected merger remedies or
    • costly Phase 2 investigations that the company hadn’t anticipated
  • whether or not to offer remedies to head off problems at Phase 1 or risk reference to a full Phase 2 investigation.

In practice companies adopt a wide spectrum of approaches, ranging from no risk analysis at all right up to a full replication of the assessment that the CMA might take.

Most lie somewhere in between but many make limited use of lessons from past cases.

As a result companies are regularly surprised by Phase 1 outcomes.

With just over 300 Phase 1 merger decisions now published there are many insights available that companies can use, and in some cases are using, better to assess and manage their  prospects.

Here are four initial steps companies can take to help utilise learning from those decisions much more effectively:

1.Take into account the full range of risk factors identified in past cases, not just some of them.

Ignoring even one of the main risk factors gives an unrealistic outlook which detracts from effective planning.

Risks unrecognised cannot be mitigated or managed.

Looking across past cases, where three of the top risk factors are present the Phase 1 clearance rate has been less than 20%. (And in 2018 it was 0%).

This is orders of magnitude lower than the average clearance rate (of 67%).

What’s more, the problematic deals in this ‘higher risk’ category have been disproportionately more likely to be referred to Phase 2 investigation, rather than being remedied at Phase 1.

2. Recognise the risk in ‘low risk’ mergers

The key here is that:

Low risk is seldom no risk.

This is where CEOs have most often been taken by surprise because

  1. There is a tendency to underestimate risks in ‘lower risk’ cases (especially from factors that are largely or wholly outside the merging parties’ control) and
  2. Mergers in the ‘lower risk’ category account for a large number of cases.

Even in the 73 cases to date where none of the top competition risk factors materialised the CMA found problems in 15 of these ‘lower risk’ cases, of which 6 went on to a full Phase 2 investigation.

15 cases since the CMA began equates to 2 or 3 cases each year. That’s a lot of scope for surprise.

3. Understand the impact of different types of risk .

There are now enough previous CMA decisions to be able to gauge the influence of different factors on case outcomes and to take this into account in focusing effort on the aspects that really matter to building a stronger case.

For instance:

  • What if a transaction involves more than one type of competition issue?
  • What if customers and/or competitors complain?
  • What if a case involves many local markets?
  • What if there are unhelpful internal business documents?
  • What if these factors combine?

In an earlier blog, I looked specifically at the role that so-called ‘market shares’ have played in merger decisions.

And in this one, I showed how merging companies paid too little attention to how closely they compete with one another.

4. Learn from cases that have a similar risk profile

In preparing for a CMA merger investigation most companies take a look at what happened in previous cases in their own sector.

There’s nothing wrong with that but it does mean that a lot of relevant case-learning often goes untapped.

It can be especially insightful to look at what made the difference between clearance and non-clearance in cases with a similar risk profile to your own, including those outside one’s own sector.

In conclusion…

Understanding and managing merger control risks can help avoid costly mistakes and focus case-making effort.

The CMA’s 300 merger decisions to date provide plenty of insights that can be deployed in a very practical way in order better to manage risk and build a stronger competition case.

——————————————————————————————————————-

This article has focused on risk management and is based on analysis from my comprehensive database of CMA merger decisions.

In addition the 300 cases to date offer many other lessons as to how best to make a merger case. These feature prominently in my merger briefings.

 

More Merger Remedies Than Ever

The Competition and Markets Authority has just completed its fourth year.

One particular development stands out, looking at the pattern of outcomes among the 250+ CMA merger decisions since 2014….

More Phase 1 remedies: Fewer Phase 2 investigations

On average, the Competition and Markets Authority (CMA) has accepted between 3 and 4 more remedy outcomes each year at Phase 1 than the Office of Fair Trading (OFT) which had responsibility for Phase 1 mergers until 2014.

At first glance that increase doesn’t look significant…. until one considers that:

  • the average number of Phase 1 remedies under the OFT was only 5 in the first place and that
  • the CMA has been formally considering 30% fewer cases than did the OFT.

The number of references to Phase 2 is on average just over 3 lower each year than it was before the CMA took over responsibility for Phase 2 mergers from the Competition Commission.

Pre-CMA the average annual number of references was 11.

While there is not be a direct one-for-one relationship between the increased average number of remedies and the lower average number of references, a  link would not be too surprising given the CMA’s stated policy of resolving more cases at Phase 1.

Overall, the percentage of problematic Phase 1 cases resolved through Phase 1 remedies, rather than reference to Phase 2, has been more that a third higher in the CMA’s first four years than for any four-year period under the OFT.

What has been the change in the pattern of outcomes at Phase 2?

The reduction in the average number of Phase 2 cases under the CMA reflects, in order of scale of change:

  • fewer mergers being abandoned on reference to Phase 2
  • fewer Phase 2 clearances
  • the near elimination of Phase 2 prohibitions and
  • a lower number of Phase 2 remedy outcomes.

This is consistent with the notion that, if there is some link between more Phase 1 remedies and fewer references to Phase 2, it is the more ‘marginal’ and more ‘fragile’ that may have been most affected.

If so it means that some cases that might have been cleared at Phase 2 are undergoing merger remedies at Phase 1.

This may be one reason why the proportion of cases being unconditionally cleared at Phase 1 or at Phase 2 is sharply lower under the CMA than it was under the OFT. (Another is the CMA’s greater selectivity in which cases formally to investigate.)

How Are Companies Responding?

Judging from conversations during some of my recent merger briefing sessions ,some companies considering or implementing mergers are already paying much closer attention to the potential for a Phase 1 remedy outcome than used to be the case.

This includes thinking harder about the more expansive types of Phase 1 remedy that the CMA has shown itself prepared to consider and accept.

For some it also means attending more to how they shape and scope their transactions and how they measure the degree of merger control risk they are taking on.

There are plenty of lessons merging companies can learn from the CMA’s 34 Phase 1 remedy cases so far – the subject of one of my recent briefings.

In recent months the rate of remedied cases has come back somewhat from its peak. Looking ahead, it will be interesting to see, therefore, whether we have already reached ‘peak Phase 1 remedy’.

 

 

 

 

Which mergers threaten competition?

The UK’s Competition and Markets Authority (CMA) has just celebrated its third anniversary since taking over from the Office of Fair Trading and Competition Commission.

It has now made competition decisions in nearly 200 Phase 1 merger cases, enough to be able to discern some of the key factors that have informed its decision-making.

One factor that some (though far from all) companies and investors think about in assessing the chances of merger clearance is how the CMA may view the share of supply that the merged company would have in the products and services in which they overlap.

The following share of supply heatmap shows the pattern of decisions to date:

Share of supply in CMA Phase 1 decisions*

(April 1st 2014 to March 31st 2017)

170402-Share of supply heatmap

The colours indicate the proportion of cases that the CMA has found to represent a ‘substantial lessening of competition’ (SLC) at Phase 1 – ranging from:

  • brightest green at 0%
  • up through the shades of green to middle yellow (circa 50%)
  • and on through orange to the deepest red (100%).

The figures underlying the heatmap are taken from the large number of Phase 1 CMA decisions that report the merging parties’ shares of supply in the markets on which those cases focus.

Three features of the map stand out:

  1. The very high proportion of SLC findings in cases where the party with the smaller share of supply has a share of 20% or more
  2. No SLC finding where the parties’ combined share of supply is below 40%
  3. The significant proportion of cases that are found not to threaten an SLC even where the parties have a high combined share of supply.  This is where many of the cases with the most interesting lessons for companies and investors reside.

In general, as one might expect, the proportion of SLC findings increases the higher the combined share of supply and the higher the percentage increment to the larger share.

Further detail is covered in my merger briefings, including:

  • How (and how not) to interpret the heatmap
  • The most insightful parts of the map
  • Disaggregation of results, for example
    • by decision-maker
    • sector patterns
    • time period
    • remedies versus reference versus ‘de minimis’
  • Other notable patterns in the CMA’s decisions to date.

There are not yet enough Phase 2 cases to give a meaningful picture for Phase2.


 

* The share of supply heatmap is copyright Adrian Payne, 2017. The heatmap can be quoted and reproduced with the appropriate attribution.

 

 

The CMA’s first year – Mergers


On March 31st Competition and Markets Authority (CMA) completed its first year. In those 12 months the new agency took 84 Phase 1 and 3 Phase 2 merger decisions.

This article summarises some of the main points of interest. These focus on the pattern of decisions and the analysis underlying them (as opposed to how the changes to the merger control process have worked – which merits an article in its own right).

  1. Case numbers recover

As the graph below shows, Phase 1 case numbers were nearly back up to the annual average under the Enterprise Act, the highest number of cases since 2007/08.

This was despite a sharp reduction in the number of non-notified mergers that the CMA ‘called in’ for investigation –  one reason why the proportion of cases found not to meet the qualifying tests for jurisdiction was well below average (as also shown in the graph).

Is the CMA being more selective than its predecessor, particularly when it comes to smaller transactions (see also point 4)? Or were there simply fewer problematic non-notified deals among the 600-or-so transactions screened by the agency’s Mergers Intelligence team during the year?

Phase 1 Merger Control: 2014/2015

(Please click on the graph to enlarge it)

 150331-Phase 1 stats

There were only three Phase 2 decisions made during the year, the second lowest number in any year under the Enterprise Act and well below the average. This reflects in part the dearth of references to Phase 2 in the CMA’s first six months –  described in my earlier article – together with only two references being made in the OFT’s final six months.

  1. The 80/20 rule rides again

Around 80% of Phase 1 cases were cleared. Nearly 20% were found to give a reasonable prospect of in a substantial lessening of competition. This proportion is very much in line with the average level under the CMA’s predecessor Phase 1 body, the Office of Fair Trading.

  1. No take-off in remedy numbers

As can be seen from the graph there is little sign so far that the CMA’s new arrangements for remedying competition problems at Phase 1 have resulted in significantly more remedies being proposed and accepted, the main objective of the change.

Of this year’s three Phase 2 decisions, one (Breedon Aggregates/Aggregate Industries) involved a divestment remedy and a price cap remedy where divestment was not possible.

  1. Small is beautiful

By contrast more SLC decisions than usual were deemed too small (so called ‘de minimis’ cases) to justify the costs of a Phase 2 enquiry, including one (WGSN/Stylesight) involving a market of over £6m – the largest so far since the de minimis policy was introduced.

In addition to these, four cases were cleared on de minimis grounds without a final decision being taken on their competition merits (Eden/Riders, Vitec/Autocue, Phonak Comfort/Audio and Key Publishing/Kelsey). This is not entirely new but has not happened on this scale before. Is it an approach that will be expanded further?

De minimis arguments were rejected in only two cases: Reckitt/K-Y and InterCity Railways/Intercity East Coast Rail Franchise. In the former, the CMA worried about the fact that similar deals might happen (so-called ‘replicability’) – a contrast to the ‘wait and see’ approach in some other cases.

Overall, the CMA seems to be taking a more expansive approach to de minimis policy. As the new agency has to demonstrate benefits to consumers that are at least ten times its costs (previously it was five times costs) it would not be surprising if the balance of its case portfolio (within mergers and beyond) was to shift.

  1. Horizontally-challenged

Horizontal ‘theories of harm’ remained the overwhelming focus for the CMA’s analysis as usual. However 23 cases also involved so-called ‘vertical theories’. Once again coordinated effects were out of fashion, featuring in only one Phase 1 case (Ballyclare/LHD).

  1. Exit closed. Please try an alternative route.

As usual, exiting asset/failing firm arguments cut little ice with the CMA at Phase 1 – rejected in all 11 cases in which they were put forward (one of the most interesting being Roanza/Enza).

At Phase 2, however, these arguments played a key part in the clearance of the Alliance Medical/IBA deal , despite representations by one of the party’s competitors that they would have bought or supported the target business in the absence of the merger.

  1. Feeling the pressure

‘Upward price pressure’ measures combining ‘diversion’ and financial margin data turned up in only one Phase 1 case (Asda/Coop) this year. This somewhat understates the importance of the price pressure approach, however, as measures of diversion carried weight in numerous cases (see number 12 below) and financial margins continued to be examined, even though (somewhat puzzlingly) that analysis is not always evident in the CMA’s published decisions.

  1. Signs of entry

While entry arguments were often made by parties and (as usual) were mostly rejected or superfluous, there were nevertheless three Phase 1 examples where the CMA gave weight to timely, likely and sufficient entry by rivals (Ballyclare/LHD, Care Monitoring and Management/Pantzel and Coopervision/Sauflon Pharmaceuticals).

In addition the potential for innovation to enhance competition was given a lot of weight in Cirrus Logic/Wolfson.

Rival entry was also said to meet the ‘timely, likely and sufficient’ criteria in the Phase 2 Omnicell/Surgichem clearance decision.

  1. A rare sighting

Countervailing buyer power arguments appear to have played a part in just one Phase 1 case (Herstal/Manroy), though the summary of the decision gives more weight to this than the main text of the decision.

  1. No smoke without smoking guns

Third party views, internal documents and bidding/tendering data (in that order) were particularly important sources of evidence, with problematic internal documents cited especially frequently in the Phase 1 SLC decisions (a notable example being Pure Gym/The Gym).

However…as every year, seemingly hottish documents do not always mean SLC – witness the Multipackaging Solutions/Presentation products case.

On evidence more generally it is worth noting that the CMA used its new information-gathering powers on 23 occasions at Phase 1, applied to third parties as well as to merging parties themselves.

  1. Competitor concerns do matter

Interestingly the Phase 1 SLC decisions strongly tended to feature complaints from both customers and competitors (as compared to the clearance decisions).

Once more the simple and often-heard ‘conventional wisdom’  that competitor complaints tend to encourage agencies to clear mergers turns out to be pretty wide of the mark.

  1. Best bids

One quarter of all Phase 1 cases involved the use of data on the bids and tenders that the parties had been involved in, primarily to examine the degree of diversion of business between the parties and others.

Particularly interesting cases include: Sonoco/Weidenhammer, Ballyclare/LHD, Multipackaging Solutions/Presentation Products, and Xchanging/Agencyport.

Two points stand out:

  • One – bidding analysis is not as straightforward as it may seem.
  • Two – the results (and the reading of past cases involving this type of analysis) need careful interpretation.

To sum up

In summary, while case numbers recovered, there were few if any that offered great potential for a major policy change. Forthcoming decisions look much more interesting in that regard!

Arguably the main questions raised are:

  • whether there will be a  greater use of Phase 1 remedies in future
  • where de minimis policy is heading and
  • whether the CMA is becoming more selective about the non-notified deals it calls in for investigation.

As usual, however, there have been many interesting lessons for parties about to merge in terms of how to assess their merger and the approach the CMA will adopt.

————————————-

Links to cases referred to above can be found on the CMA’s web pages .

 

Fit for merger?

The CM140921-gymA’s long-awaited lengthy merger decision on the Pure Gym/The Gym deal has finally been published, nearly two and a half months after the decision was announced to refer it for Phase 2 investigation.

Although the deal was abandoned soon after the reference decision was made, the decision itself is one of the most interesting decisions of the year.

In terms of some of the issues raised, it reminds me very much of the OFT’s Rank/Gala casinos decision almost exactly two years ago.

It should give plenty of food for thought to merging parties in similar types of business on matters such as:

  • how important national parameters of competition can be, even when services are provided through local outlets
  • the importance of realistically assessing which types of outlet compete most strongly and how – not all gyms are created equal, it appears
  • why 80% customer catchment areas are not always the whole story in thinking about the geographic scope of competition
  • how internal documents need to provide sufficient support to the narrative parties put forward
  • why potential competition between parties (i.e. in opening new outlets near the other party) can be every bit as important as existing overlaps, especially where there is only a small number of national players
  • the role of entry analysis and customer switching analysis when competition is as much about fighting for new customers as it is about retaining existing customers and when tariff structures complicate incentives
  • what can happen when the CMA believes it may not have received all the information that is available
  • why website material can become an important source of evidence that needs to be managed well
  • the importance the CMA can attach to being able to replicate or extend results of analysis that the parties present.

Throughout the decision the CMA makes repeated reference to the commentary on retail mergers, published jointly by the former OFT and CC .

It is well worth reading and fully considering the points made in the commentary if you are contemplating a retail merger (even though I would say that having had a close hand in developing the retail commentary!).

The commentary can be found here and the decision itself is here.

 

Merger Research: What’s new in 2013 ?

It is that time of the year when newspapers and magazines are full of ‘book of the year’ recommendations.

Well, by way of contrast……

….here is my selection of ten of the most interesting new (freely-downloadable) research papers I have read in 2013.

A great antidote to an overdose of turkey and tinsel !

The selection covers both theory and practice and ranges from hospital mergers….to topical issues in merger policy…. to what makes for successful mergers.

Do drop me a line if you think there are other papers as deserving of a read as those on the list.

ten_jpg-626x875

So, here are my ten (in no particular order)……

1. Quality matters

Most studies of the effects of past mergers focus on price. Here is that rare beast – one that looks at how two past mergers affected quality.

‘Mergers and Product Quality: Evidence from the Airline Industry, Chen and Gayle, MPRA, November 2013

http://mpra.ub.uni-muenchen.de/51238/1/MPRA_paper_51238.pdf

2. Going forward

Here is another paper looking at an often overlooked issue: how the prevalence of forward contracting in a sector affects the impact that horizontal mergers may have. Maybe one to consider when that next electricity merger comes along?

‘Forward Contracting and the Welfare Effects of Horizontal Mergers’, Miller, EAG, May 2013

http://www.justice.gov/atr/public/eag/296846.pdf

3. Could hospital mergers be good for you?

Hospital and health mergers are very much in the news these days. Here’s a paper that shows how price, quality, coinsurance and regulation can interact to produce some surprising results.

‘Hospital Mergers: A Spatial Competition Approach’, Brekke, Siciliani and Straume, NHH, April 2013

http://www.nhh.no/Files/Filer/institutter/sam/Discussion%20papers/2013/08.pdf

4. Bad news for R&D?

This paper uses a differences-in-differences approach to look at the effect of over 200 mergers on R&D.

On the face of it, it looks like bad news for R&D. But is it actually harm to consumers?

‘M&A and R&D – Asymmetric Effects on Acquirers and Targets’, Szücs, DIW Berlin, October 2013

http://www.diw.de/documents/publikationen/73/diw_01.c.429740.de/dp1331.pdf

5. Judging books by titles

Don’t let the title put you off. This is one of the most important papers of 2013. Its results should give merging companies and competition authorities a lot of food for thought.

‘Merger Externalities in Oligopolistic Markets’, Gugler and Szücs, DIW Berlin, June 2013

http://www.diw.de/documents/publikationen/73/diw_01.c.426970.de/dp1321.pdf

6. Timing is everything

I can think of several UK cases where the fact that the deal has been investigated after completion has helped clarify aspects of the case!

This paper puts the issue into a wider policy context and highlights the main factors that should influence timing. But is it really a case of either/or?

‘Ex post or ex ante? On the optimal timing of merger control’, Cosnita-Langlais and Tropeano, Economix Working Papers, June 2013

http://economix.fr/pdf/dt/2013/WP_EcoX_2013-22.pdf

7. Are cartels and mergers substitutes?

The short answer is ‘yes’, according to this paper. Clues perhaps for the Merger Intelligence function in a voluntary regime?

‘Do Cartel Breakdowns Induce Mergers?’, Hüschelrath and Smuda, ZEW, June 2013

http://econstor.eu/bitstream/10419/74799/1/749474947.pdf

8. A new demand-side efficiency

Some interesting new arguments in this paper, of particular interest where search costs are high.

‘Search Costs, Demand-side Economies and the Incentives to Merger under Bertrand Competition’, Moraga-Gonzalez and Petrikait, February 2013

http://www.tinbergen.nl/~moraga/Moraga_Petrikaite_3.pdf

9. Culture clashes

Clash of cultures often gets blamed for mergers that don’t deliver. But how strong is the theory and evidence supporting this view?

This paper contains some interesting insights into one of the most important questions about M&A.

‘The Role of Corporate Culture in Mergers and Acquisitions’, Bouwman, May 2013

http://faculty.weatherhead.case.edu/bouwman/downloads/BouwmanCorpCultureM&A%20Dec2012.pdf

10.Mergers that matter

An interesting approach to measuring what affects propensities to merge and who benefits from merger.

Mergers that matter: The Value Impact of Economic Links’, Harford et al, July 2013

https://www.nhh.no/Files/Filer/institutter/fin/wp/Paper%20-%20Jarrod%20Harford.pdf

Happy reading…and Merry Christmas one and all

One Question That Can Make Or Break A Merger Case

Over the past ten years hundreds of companies have made a case to the UK competition authorities seeking approval for their merger.

The way in which cases are argued and presented before the authorities varies widely. As a result, there are many lessons that can be learned from past practice, good and bad.

In this brief article I focus on one important aspect that crops up again and again. It concerns the following question:

–       How to make a case that fits together well?    –

A question to ask early

It is clearly a question that is best asked (and answered) early on in the process of developing the case for a merger.

Rubik

And yet, in the hurly burly of the deal, it is a question that is easy to overlook –  or to ask too late in the process – or to answer only partially.

Instead what tends to happen in these circumstances is that the different elements of the case emerge and evolve as the process unfolds.

Such an approach may have the advantage of flexibility  – but it also carries the risk that, once the walls are built, the roof won’t fit.

And that is indeed what happens in a surprising number of cases, resulting in

  • Wasted time and cost
  • A longer investigation –  and – in some cases
  • A poorer overall outcome for the merging parties.

A challenging question

Perhaps one of the reasons the question doesn’t always receive the timely attention it deserves is that there are a number of different aspects to it.

Here are the five I look at:

1. Are the arguments put forward internally consistent ?

  • When the individual building blocks of a case do not hang together well the credibility of the overall case suffers and the process takes longer, while inconsistencies are probed.
  • To take a simple example that has arisen many times: how well does the argument that acquisition is the only path sit with the proposition that entry into the business is easy and inexpensive?

2. How to ensure the case put forward remains consistent throughout the process ?

  • Changing tack on a major plank of a case during the process always raises questions in the agencies’ minds.
  • ‘Why”, they understandably ask, “should the new story we are being told be more credible than the old one (which we were assured was accurate)?”

3. How well is the overall story for the merger supported by the evidence advanced?

  • When these clash the agencies rightly question not only the particular piece of evidence concerned but – sometimes more damaging –  the coherence of the wider story.
  • For example: If the overarching story is that exit of the target company is inevitable in the absence of the deal, how well does this tally with the actions of the target in the past year or two?

4. Do the theory and evidence match?

  • When theory and evidence collide which, if either, will remain standing?
  • For example: where a case relies heavily on the theory that only two suppliers are needed to ensure a highly competitive outcome, how credible is that theory given the number of suppliers that customers actually shortlist?

5. How well integrated are the business, economic and legal arguments?

  • A particular risk is where separate submissions from legal advisers and economic advisers contain material that does not fit together well (or at worst is contradictory).
  • Another is when key analysis is identified and put forward too late in the day.

A powerful first step

The very process of asking each of these questions in a structured way, and with the right tools and techniques, is a powerful first step to:

  • understanding the real strength or weakness of the case right from the start
  • prioritising the evidence-gathering and analysis needed to make the strongest case
  • deciding how best to present the case
  • managing the five risks/opportunities I outlined above.

Even where it turns out that there is not an immediate or clear answer to one or more of these questions, identifying that fact can be crucial to managing the resulting risk, as well as the overall case.

                                                                                               © Adrian Payne 2013

—————————————————————————————————————————————————————————————————————————————-

Material in this article is drawn from my training course – ‘Making a Merger Case: Best Practice and Common Pitfalls’.

The course examines lessons from over 500 past cases in each of the following areas: case preparation, case strategy, research and analysis, communication and presentation, and resources.