August 3, 2021

Antitrust Merger Investigations: 2021’s First Half Scorecard

This Dechert memo reports on the timing of merger investigations during the second quarter of 2021.  Here are some of the highlights:

– Despite Big Tech headlines, the percentage of significant U.S. merger investigations involving technology companies was below the average for the last decade. By contrast, merger investigations in traditional sectors like industrial products and services and financial services increased. Meanwhile, healthcare and pharmaceuticals remained the largest focus of significant U.S. merger investigations, in line with historic averages.

– The 11 significant U.S. merger investigations concluded during the first half of 2021 under the Biden Administration (5 DOJ; 6 FTC) are well below the 17 concluded in the first half of 2020 (6 DOJ; 11 FTC), but close to the 12 concluded at the start of the Trump Administration in the first half of 2017 (4 DOJ; 8 FTC).

– The duration of significant U.S. merger investigations declined compared to last quarter. The average duration for first half of 2021 was 12.1 months, but there remains a wide disparity for individual investigations even within the same industries.

– An announced joint review of existing merger guidelines encouraged by the White House, combined with new leadership at both antitrust agencies, foreshadows potential bigger changes ahead.

Another thing that the first half stats make clear is that the agencies are ratcheting up enforcement pretty significantly. The memo points out that almost half of the significant U.S. merger investigations that were wrapped-up during the first half of 2021 resulted either in the filing of a complaint or a decision to abandon the transaction. By comparison, in the first half of the Trump administration’s first year, only two of 12 significant merger investigations concluded with a complaint or an abandoned transaction, and more investigations concluded in a complaint or an abandoned transaction in the first half of 2021 than in either 2017 or 2018.

John Jenkins