M&A Year in Review 2023 brochure - Flipbook - Page 78
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Regulatory
Antitrust and Competition
United States
U.S. antitrust enforcement agencies are expected
to continue their vigorous merger enforcement in
2024. Through the long-awaited publication of
the Department of Justice (DOJ) and Federal
Trade Commission (FTC)’s Merger Guidelines in
December 2023, the agencies signaled they will
keep pursuing novel theories of harm to challenge
mergers that, in the past, may not have been
subject to scrutiny. The Merger Guidelines create
more risk and uncertainty, as dealmakers try to
anticipate how the new guidelines will be applied
by the agencies and whether the guidelines will be
adopted by the courts.
The Merger Guidelines cover horizontal and
vertical mergers, and establish lower structural
presumptions of harm as a basis for transactions
the agencies presume will substantially lessen
competition or tend to create a monopoly. In
addition, the Merger Guidelines outline the
agencies’ focus on mergers that entrench or
extend a firm’s dominant position, are part of a
trend toward industry consolidation, or may
lessen competition in labor markets. The
Guidelines also support the agencies’ review of a
series of acquisitions in the same or related
business lines (even if none of the deals alone
would violate the law), dovetailing with recent
efforts by the FTC and DOJ to target private equity
“roll-ups,” particularly in the health care industry.
Finally, a potentially significant change to the
burden and timeline for antitrust merger clearance
is on the horizon: in June 2023, the FTC and DOJ
issued a proposed rule that would make extensive
changes to the information and documents
required in connection with premerger notification
reports under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976. We expect that some
version of the rule will come into force in 2024. If
implemented, the proposed changes would
require parties submitting HSR filings to provide
significantly more information and documents
than is currently required – nearly quadrupling
the average expected preparation time required
for each filing and resulting in significant increases
in the costs to prepare such filings.
U.S. antitrust enforcement
agencies are expected to
continue their vigorous
merger enforcement
in 2024.”
