Five Common Mistakes General Counsel Make with Second Requests
A second request from competition regulators is not simply document production. It is litigation preparation, and treating it as the former is the most common and most expensive mistake.
Mistake 1: Treating it as a document project. Teams hire eDiscovery vendors before they have worked out the regulator's likely case theory and how its experts will be cross-examined.
Mistake 2: Assuming the regulator runs on the deal timeline. Regulators often study a transaction for months before the request arrives. The defence needs a competing narrative and a witness plan from the first day.
Mistake 3: Outsourcing the economic model entirely. Economists should work from the same factual record as the lawyers, using the company's internal materials, so the model holds up under cross-examination.
Mistake 4: Raising divestitures too early. Even informal discussion of divestitures can become the regulator's starting point. A no-divestiture position should be consistent and supported by facts.
Mistake 5: Ignoring parallel reviews. When reviews run in several jurisdictions at once, every submission needs to tell the same story about the market and competition.
Correction method. Involve the litigation team from the start and build a record that could withstand trial. Deals close on schedule when regulators face a case that is hard to win, not when enough documents have been produced.
