FTC Takes Action Limiting Overbroad M&A Non-Compete

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WHAT HAPPENED

  • GPM Investments (GPM) acquired 60 gas stations from Corrigan Oil (Corrigan).
  • As part of the acquisition agreement, Corrigan agreed not to compete for a period of time with the gas stations purchased from Corrigan. In addition, Corrigan agreed not to compete with GPM for another 190 gas stations that GPM already owned.
  • Few of the 190 existing GPM locations were “anywhere near an acquired Corrigan” gas station.
  • Because the transaction would reduce the number of competitors from 3-to-2 or fewer in five areas, the Federal Trade Commission (FTC) required divestitures in those areas.
  • Additionally, the FTC determined that the non-compete was overbroad, noting that the non-compete was “untethered to protecting goodwill acquired in the acquisition” because it affected gas stations in “areas geographically distinct from the acquired” gas stations. For this reason, the non-compete was highly suspect and warranted FTC scrutiny.
  • The FTC required the parties to revise the transaction agreement non-compete such that it was no longer in duration than 3 years and impacted an area no greater than 3 miles from each acquired gas station.

WHAT’S NEXT

  • FTC Chairwoman Lina Khan confirmed that some non-compete agreements that are part of a transaction agreement are “necessary to protect a legitimate business interest in connection with the sale of a business, such as the goodwill acquired in a transaction.”
  • Here, the non-compete terms were determined, however, to be “facially” overbroad in scope and unrelated to protecting any goodwill GPM was acquiring with the Corrigan stations.
  • The FTC’s action suggests that it is on the lookout for overbroad non-competes that are not reasonably related to a legitimate purpose even if part of a legitimate transaction agreement.
  • The action by the FTC provides sellers with an example to argue that onerous non-competes demanded by buyers have the potential to raise antitrust issues that could slow deal timelines, particularly if a non-compete is overbroad in relation to the products impacted, the duration of the non-compete, and/or the breadth of the geography covered.

Alex Grayson, a summer associate in the Washington, DC, office, also contributed to this article.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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