November 9, 2022

Antitrust: Q3 Stats Reflect FTC & DOJ’s Hard Line on Settlements

This Dechert memo provides an overview of third quarter merger investigations and indicates that regulators are “walking the walk” when it comes to their stated hard line on merger enforcement. Here’s an excerpt:

In both our DAMITT 2021 Report and our Q1 2022 Report, we warned that parties to transactions subject to significant merger investigations were more likely to see the FTC or DOJ sue to block their deal or push them to abandon it prior to being sued. Despite a temporary reprieve last quarter—when just under 50 percent of significant investigations resulted in a settlement—the Biden administration’s aversion to settlements returned in Q3, when all concluded significant U.S. merger investigations resulted in either a complaint or an abandoned transaction.

That is not to say that the agencies will not accept any settlements. For the first three quarters of 2022, nearly 40 percent of significant investigations resulted in a settlement. Of note, however, the DOJ has not entered into a single settlement to resolve a significant investigation since DOJ Assistant Attorney General Jonathan Kanter began warning, shortly after taking office in November 2021, that investigations resolved with merger remedies should be the “exception, not the rule.” The FTC is responsible for all merger settlements since that time.

Antitrust regulators concluded only three investigations during the third quarter, and all of them ended with either a complaint or an abandoned deal.  The memo says that for the first time in more than a decade, there were no settlements or closing statements.

John Jenkins