White & Case Advises on First FTC Prior Approval Grant since FTC Policy Change

Global law firm White & Case LLP has advised Novasep Process SAS on a milestone antitrust approval of a Federal Trade Commission petition filed by Sartorius Stedim Biotech S.A. to acquire the chromatography equipment business of Novasep. The approval is the first grant in recent years affirmatively approving an acquisition, and is also the first such approval after the implementation of the FTC's new policy of imposing prior approval in consent orders.  

"We are delighted to have secured approval for the acquisition, and grateful to the FTC staff and commissioners for their thoroughness and openness to productive and constructive dialogue throughout the process," said White & Case partner Rebecca Farrington, who led the Firm's team in the matter. "The approval indicates how a proactive approach and active engagement with the FTC can expedite approval." 

White & Case Chair of the Global Antitrust/Competition Practice, J. Mark Gidley, added "The recent substantial shift in FTC policies and aggressive stance toward mergers & acquisitions requires creativity and nimbleness. Congratulations to our merger control team for achieving another market-leading result."

Sartorius Stedim Biotech's agreement to acquire the chromatography equipment business of Novasep was announced on January 6, 2021 and was subject to the FTC's prior approval, among other conditions. 

In 2021, the FTC announced that it would be rescinding its previous policy statement on prior approvals and instituted a new policy regularly requiring prior approval provisions, adding a significant potential hurdle to affected transactions by shifting the burden onto the parties to secure approval for a transaction with no statutory deadline or requirement that the FTC seek court approval to block a transaction. A prior approval has no statutory timeline, unlike the HSR Act rules, under which the FTC has deadlines for completing its investigation and ultimately challenging a merger in court.

The petition for approval was filed with the FTC on October 28, 2021 after substantial pre-filing consultation and approved three months later on January 31, 2022. The M&A transaction closed on February 8, 2022. 

The White & Case competition/antitrust team that advised on the FTC approval was led by partner Rebecca Farrington, and included associates Heather Greenfield, Regina Loureiro (all in Washington DC); and Kim King, Michael Kucharski and Li Jiang (all in New York). 

The Firm's M&A team that advised Novasep on the transaction was led by partner François Leloup and associate Emmanuel Chevignon (both in Paris), and included partners Michiel Visser (New York), Alex Zhang (Shanghai), Alexandre Jaurett (Paris), counsel Orion Berg (Paris) and associate Marina Safonova (New York). Partner Estelle Philippe (Paris) provided tax advice.

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