But on January 16, The Australian Financial Review’s Street Talk column published the confidential details of a sitting panel reviewing Nitro Software and bidders – KKR-owned Alludo and Potentia Capital – including who was leading it.
The panel made initial inquiries to the parties involved following the release of the article, before forcing them to sign statutory declarations to confirm that neither they nor their directors, officers, employees, agents or advisors had disclosed confidential information or spoken to The Australian Financial Review regarding the article. The panel said the process was “appropriate”.
“This process was a costly one for the parties, which we recognise,” it said. “However, the media canvassing prohibition is important for several reasons.”
“The prohibition was put in place because the panel considered that matters were more likely to be resolved quickly if parties refrained from canvassing their arguments in the media, and that it would receive more open and less polarised submissions if parties were not responding to media reports or worrying about how their submissions might be presented in the media. The rationale for the prohibition remains.”
Requesting statutory declarations from participants in a takeover is an unprecedented measure. If action continues to be taken by the panel, it will make it more difficult for columns such as Street Talk and The Australian’s rival column, DataRoom, to publish stories. It will also put sources on notice, making them less reluctant to speak. The panel’s chief executive Allan Bulman declined to comment further.
Australia’s other key takeover regulator, The Australian Securities and Investment Commission, has its own rules about media canvassing. A spokesperson for ASIC said supported the steps taken by the panel.
“ASIC considers that compliance with the Takeover Panel’s procedural rules, including the media canvassing prohibition, is necessary to ensure the efficient and effective operation of the Panel, and that the Panel’s reasons in the Nitro Software matter outline the importance of that prohibition,” it said.
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