Law360 Quotes Davina Garrod on Merger Reviews, Global Competition Trends to Watch in ‘18

Akin Gump London antitrust partner Davina Garrod has been quoted by Law360 in two articles that look forward at trends in the new year.

In “Merger Reviews To Watch In 2018,” she discusses Bayer AG’s $66 billion buyout of Monsanto, which, according to the article, continues to be the object of antitrust attention, specifically from the EU, which has yet to specify the details of its concerns, raised via its statement of objections. Law360 spotlighted as a possible sticking point Bayer’s use of “digital farming,” by which crops are managed via technological means.

Garrod said, “The question is how much will the innovation theory be in the statement of objections. The commission may put in its statement of objections that this merger will harm the evolution of the digital farming market. At the moment, the whole idea of digital agriculture is a little bit nebulous, so it will be interesting to see if they put it in the statement of objections and how they define it.”

In “Global Competition Law Developments To Watch In 2018,” Garrod discussed the U.K.’s Competition and Markets Authority (CMA), the country’s antitrust body, and its declared intent to use Brexit as an opportunity to conduct higher-profile merger reviews.

She noted, “The CMA will become a Tier 1 antitrust jurisdictions,” adding that the government has already increased the agency’s funding. In which regard, she said, “We can expect the resources to start to be utilized over the next year, so if Brexit happens on 29 March 2019, we would expect the CMA to have additional staff by then. It's something that's very exciting for people who work at the CMA, and very exciting too for English lawyers like me, because it means there's going to be even more work.”

On the topic of European antitrust authorities’ focus on innovation and competition in the technology sector, Garrod said, regarding the European Commission forcing Dow Chemical and DuPont to shed R&D assets before merging, “In the recent Dow-DuPont case, the European Commission, I think, pushed to the limit their innovation theory of harm, and they were prepared to look upstream at broad innovation markets that were very nascent and to make a determination that innovative R&D would be harmed by this transaction. There has been a lot of criticism towards that.”

On an EU proposal to create a system that would allow it a say in national security reviews of foreign direct investment into the bloc, she said, “It will certainly take longer for qualifying foreign direct investment to be approved. I don't think we're quite at the extreme of the U.S. and CFIUS [Committee on Foreign Investment in the United States], but if firms were talking about a Chinese or a Russian acquirer, I think it's probably fair to say that the risk of a long delay or mitigation or even a veto will likely increase.”