ANALYSIS: Battling the Antitrust Monster in Chapter 11

The recent approval of the sale of bankrupt energy drink maker Bang Energy LLC to its rival Monster Beverage Corp. for $362 million illustrates how an antitrust review can severely complicate a bankruptcy case.

And the Federal Trade Commission’s proposed changes to the Hart-Scott-Rodino Act’s reporting process for mergers and acquisitions will further complicate Chapter 11 sales and may exacerbate the conflict between the goals of antitrust and bankruptcy law.

Chapter 11 debtors’ counsel and prospective buyers’ counsel should therefore strategize in advance to address antitrust issues—and contemplate the potential impact of the FTC’s proposed changes on bids and valuations. ...