close

For more than four decades, Fenwick & West LLP has helped some of the world’s most recognized companies become, and remain, market leaders. From emerging enterprises to large public corporations, our clients are leaders in the technology, life sciences and cleantech sectors and are fundamentally changing the world through rapid innovation.  MORE >

Fenwick & West was founded in 1972 in the heart of Silicon Valley—before “Silicon Valley” existed—by four visionary lawyers who left a top-tier New York law firm to pursue their shared belief that technology would revolutionize the business world and to pioneer the legal work for those technological innovations. In order to be most effective, they decided they needed to move to a location close to primary research and technology development. These four attorneys opened their first office in downtown Palo Alto, and Fenwick became one of the first technology law firms in the world.  MORE >

From our founding in 1972, Fenwick has been committed to promoting diversity and inclusion both within our firm and throughout the legal profession. For almost four decades, the firm has actively promoted an open and inclusive work environment and committed significant resources towards improving our diversity efforts at every level.  MORE >

At Fenwick, we are proud of our commitment to the community and to our culture of making a difference in the lives of individuals and organizations in the communities where we live and work. We recognize that providing legal services is not only an essential part of our professional responsibility, but also an excellent opportunity for our attorneys to gain valuable practical experience, learn new areas of the law and contribute to the community.  MORE >

Year after year, Fenwick & West is honored for excellence in the legal profession. Many of our attorneys are recognized as leaders in their respective fields, and our Corporate, Tax, Litigation and Intellectual Property Practice Groups consistently receive top national and international rankings, including:

  • Named Technology Group of the Year by Law360
  • Ranked #1 in the Americas for number of technology deals in 2015 by Mergermarket
  • Nearly 20 percent of Fenwick partners are ranked by Chambers
  • Consistently ranked among the top 10 law firms in the U.S. for diversity
  • Recognized as having top mentoring and pro bono programs by Euromoney

MORE >

We take sustainability very seriously at Fenwick. Like many of our clients, we are adopting policies that reduce consumption and waste, and improve efficiency. By using technologies developed by a number of our cleantech clients, we are at the forefront of implementing sustainable policies and practices that minimize environmental impact. In fact, Fenwick has earned recognition in several areas as one of the top US law firms for implementing sustainable business practices.  MORE >

At Fenwick, we have a passion for excellence and innovation that mirrors our client base. Our firm is making revolutionary changes to the practice of law through substantial investments in proprietary technology tools and processes—allowing us to deliver best-in-class legal services more effectively.   MORE >

Mountain View Office
Silicon Valley Center
801 California Street
Mountain View, CA 94041
650.988.8500

San Francisco Office
555 California Street
13th Floor
San Francisco, CA 94104
415.875.2300

Seattle Office
1191 Second Avenue
10th Floor
Seattle, WA 98101
206.389.4510

New York Office
1211 Avenue of the Americas
32nd Floor
New York, NY 10036
212.921.2001

Shanghai Office
Unit 908, 9/F, Kerry Parkside Office
No. 1155 Fang Dian Road
Pudong New Area, Shanghai 201204
P.R. China
+86 21 8017 1200


Antitrust Alert: Antitrust Is Alive and Well and Lurks in Unlikely Places

Or, How to Keep Your CEO off the Witness Stand

A recent story in the Bay Area legal newspaper The Recorder had this headline: “Former Bazaarvoice CEO Takes Stand to Explain Damning Email.” That is not the kind of media attention that any CEO likes to have or the way he or she wants to spend time. The unfortunate situation was the result of a change that many business people have not recognized: Antitrust enforcement is back, and one place that it is really back is merger enforcement. The pending Bazaarvoice trial is a clear reminder that there are a number of misconceptions about antitrust enforcement of mergers that can be dangerous and costly, resulting in broken deals, unwanted trips to the courthouse, or both.

First, many people think that only mergers between giant companies are subject to antitrust scrutiny. In fact, everything depends on the markets involved in the merger. Some markets are small, and a merger of two relatively small companies in such a market may yield a high market share that will excite the antitrust enforcers. Recent challenges have involved various markets where total annual sales of all participants fell well below $100 million—and in some cases below $20 million.

Second, and related to the first, many people think that mergers below the reporting thresholds of the Hart-Scott-Rodino Act are home free. Not so. Those thresholds are designed to catch most problematic mergers, but they do not create a safety zone. The enforcement agencies have people watching for reports of mergers that might create competitive problems, often aided by unsolicited contacts from customers or other industry participants. While the number of problematic mergers below the reporting thresholds is small, they do exist, and the enforcement agencies find many, if not most, of them. In fact, the agencies have challenged over a dozen such transactions in the last three years alone.

Third, many people think that mergers that have been consummated won’t be challenged, especially if the two companies have been structurally combined. Again, wrong. It is hard to unscramble the eggs once the omelet has been made, and the burden on the enforcement agencies in such cases may be higher. But that does not mean that they cannot or will not try. The challenge to the Bazaarvoice acquisition of PowerReviews is just such a case.

The worst thing about these misconceptions is that they cause people to be sloppy and careless and to do stupid things, particularly when it comes to writing emails. The former CEO in Bazaarvoice forwarded to his board an email written by another manager in the company. It said that the merger would leave Bazaarvoice with “no meaningful direct competitor.” That is like dangling red meat in front of a hungry lion for the enforcement agencies. Not to be outdone, the CEO of PowerReviews wrote an email that said the deal would create a “barrier to entry for sub-scale firms,” using the actual jargon of antitrust.

The obvious message is that everyone associated with potential acquisitions needs to be careful about writing emails that talk in terms of the advantages of the potential deal eliminating competitors, suppressing competition, raising price, or similar things. This applies from the earliest time when deals are being considered, particularly by the business development people who are trying to “sell the deal” to others inside the company. When the enforcement agencies come calling, they will scoop up all the emails that concern the target, and they will find the juicy ones.

There is a degree of bad luck in having a relatively small merger challenged. The odds are against it, but the cost is high when it happens. It is worth having an antitrust lawyer take a look at a deal at an early stage to see if it looks like a problem. In addition, however, it is really important to spread the word within the company about good document creation practices. A challenge is much more likely when the senior management of one or both of the companies has said things in documents that appear to prove the government’s case.

​​