Opportunities to intervene in deals that are before a regulator present themselves in a number of ways and at different stages of the process. It is worth considering some of the potential rewards and considering ways in which intervention can be managed to minimize risks.

For an antagonist or competitor, the optimal reward might be scuppering an adverse deal in its entirety. But a carefully constructed opposition can also be used to be able to market gain advantage from a remedy package, particularly if there are likely to be divestments. The competition authority must take into account the roles of all players in the market when assessing the competitive environment.

While we do not suggest that competitor intervention should be ‘secret,’ there are risks associated with being too vocal, courting blow-back in the press and worsening relationships with the competition authority or other stakeholders. The risks can be minimised through careful management and the protection afforded by a confidentiality regime.

For interested third parties – for example, charities, consumer groups or trade unions – these risks don’t arise, as the use of reputational leverage is a critical resource for those entities that are less moneyed than the corporate behemoths.

Having weighed the pros and cons, a reasonable starting point is to establish the overall goal of intervention and then devise a strategy to achieve it, targeting selected audiences through the most effective channels. This will include a clear message matrix that captures competition concerns, but that also addresses non-legal factors which might include industrial and regional policy, innovation, championing of a certain industry, infrastructure, intellectual property, and the wide public interest, to give but a few examples.

The information gathering process of the competition authority expressly allows for the views of third parties to be taken into account. They routinely consult customers and competitors as part of their competition assessment, and this provides an opportunity to work with your legal team to craft a response to address competition concerns. This can then be a launchpad to brief journalists off the record and voice worries about the deal, so that they have your point of view when they write. Proof points, both qualitative and quantitative, are critical to garnering the interest of business and competition writers.

More broadly, affected government departments might be consulted and so a stakeholder mapping and engagement plan can be rolled out: this makes more sense if the review goes to Phase 2, but should be considered earlier in the planning stages to identify key stakeholders such as Ministers and their advisers, and also identifying any parliamentary hearings that could be relevant.  Sometimes a broader campaign will include third party supporters such as academics, think tanks, to speak on behalf of the company – or, indeed, against it. Parliamentary hearings can be particularly impactful.

All of this means front-loading and integrating the public affairs support within the competition strategy. The earlier the planning starts and the more the roll out of any strategy is managed the better the results are likely to be.

For more information, you can contact DRD’s Competition and Regulation team at competition@drdpartnership.com.