On 6 August 2019 the UK Competition and Markets Authority (CMA) published an unwinding order requiring the reversal of post-completion integration steps taken in the completed acquisition by Bottomline Technologies Limited (Bottomline UK) of Experian Limited’s Experian Payments Gateway business (the EPG business).
The order is intended to restore the market position to what it would have been had the integration not taken place, in order to avoid prejudicing the CMA’s investigation into the merger and any possible remedies which could be required in due course. In particular, the order requires Bottomline UK (and its parent company) not to use any commercially sensitive information relating to the EPG business to solicit any EPG customer in relation to any product or service that competes with the EPG business, and to segregate all EPG confidential information (including all existing physical and electronic materials).
The decision to issue an unwinding order in this case comes against the background of increased use and enforcement of “interim measures” in UK merger control, and updated guidance on the CMA’s powers in this area which was published in June 2019. It is particularly notable for two reasons:
- It is only the second time that the CMA has used its powers to make an unwinding order pending the conclusion of a merger control investigation into a transaction, having first used them earlier this year during its Phase 2 investigation into the Tobii/Smartbox merger, (which was ultimately prohibited in August 2019). In that case, the CMA’s unwinding order required the termination of a distribution agreement and reinstatement of development projects and the supply of products which had been discontinued.
- It is the first time that the CMA has made an unwinding order at a very early stage of its investigation – indeed, prior even to the formal launch of its Phase 1 investigation into the merger, which was subsequently announced on 9 August 2019. The CMA has been considering the transaction for a number of months, having first made an initial enforcement order prohibiting further integration with effect from 22 May 2019. However, it appears from the CMA’s commencement notice that it did not have sufficient information to enable it to formally begin its inquiry (and “start the clock” on the statutory investigation timetable) until 9 August 2019.
This case is a good reminder that although the UK merger control regime is a voluntary one, integrating two merging businesses without first obtaining clearance may run the risk of being required to “unscramble the eggs” at a later date if the transaction meets the relevant turnover/share of supply thresholds. Such “unscrambling” may be required even prior to the CMA reaching a conclusion in its investigation of the merger, if this is deemed necessary to avoid prejudicing the CMA’s investigation and the implementation of any remedies which may ultimately be required.
It is also a useful illustration of the possibility of the CMA launching an “own-initiative” investigation many months after a transaction has been completed. Whilst the CMA must generally reach a decision on whether to refer a transaction for an in-depth Phase 2 investigation within four months of it being completed, that time limit does not start to run until material facts about the merger have been made public, or been given to the CMA. In this case, the parties completed their transaction on 6 March 2019, but now face a merger inquiry which – if a reference is made for a Phase 2 investigation and remedies are considered – may not be completed until well into 2020.