DealLawyers.com Blog

Wachtell Lipton recently published a memo offering insights into the Trump administration’s approach to antitrust enforcement during its first six months.  The memo notes that settlements are back on the table and that private equity & the energy sector no longer have targets on their backs, but it also says that the administration continues to endorse the kind of expansive interpretation of the antitrust laws that characterized the Biden administration’s approach.  Here’s an excerpt:

The current administration has continued to endorse many of the substantive views of the Biden Administration. For example, Chairman Ferguson announced that the FTC would maintain the 2023 Merger Guidelines as its framework for substantive merger review. As we previously discussed, the 2023 Guidelines adopted lower concentration thresholds at which the agencies will presume a transaction violates the antitrust laws, and memorialized more expansive theories of harm than the prior 2010 Guidelines. The FTC also implemented the new, more burdensome HSR Form despite a pending challenge from the U.S. Chamber of Commerce. Chairman Ferguson has endorsed the new Form as a “win-win for all parties.”

Both agencies also have active merger litigation. The DOJ continues to pursue the United Health/Amedisys and American Express GBT/CWT Holdings challenges brought by the prior administration. In March, the FTC sued to block GTCR’s proposed acquisition of Surmodics, citing favorably to the 2023 Merger Guidelines in support of its allegation that the transaction is “presumptively unlawful.”

The memo also says that Big Tech and healthcare remain areas of focus and that, like other agencies, the DOJ and FTC are closely aligned with the Trump administration’s policy agenda.  It also discusses  the growing role that state AGs are playing in merger enforcement.

– John Jenkins