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While the Trump administration’s approach to M&A antitrust review and enforcement has been somewhat more relaxed than what dealmakers encountered during the Biden administration, there still have been more than a few curveballs from antitrust regulators that parties have had to address. These include regulatory scrutiny of ESG & DEI programs, a more active industrial policy demonstrated by the use of tariffs, and the US government’s decision to take investment positions in companies in strategic industries.

A panel including representatives of H/Advisors Abernathy, King & Spalding and Jenner & Block at the recent Ray Garrett Corporate & Securities Law Institute provided some recommendations on how to successfully navigate this environment. This excerpt from an H/Advisors Abernathy memo summarizing the panel’s discussion shares some of the panelists’ insights:

Have a plan to get ahead of likely issues. The transactional nature of this administration, and the hot topics on which they are focusing, should not come as a surprise. The Trump administration, and many Congressional Republicans, campaigned on these commitments. They told voters what they would do and now they are following through with promises. Self-audit your workplace and culture (i.e. DEI and ESG) programs, review prior disclosures and public statements, understand what motivates your regulators and representatives.

Plan for today’s new media landscape. For deals under regulatory scrutiny, the battleground today still includes The Wall Street Journal, Financial Times, the wires and New York Times, but the terrain has shifted. Leaders and their staffs are turning more often to podcasts, newsletters and partisan or niche outlets driving messages on social media. Think differently and with creativity so you are directly reaching decisionmakers where they are now, not where they have traditionally been.

Engaging with Congress can be an opportunity. Too many companies choose to be too reactive in engaging with Congress. On large transactions, now, that assumption is frequently a mistake. Recently, Congress has demonstrated a track record of influencing change at organizations of all sizes. It is prudent to assemble to team of lobbyists, lawyers, and communicators to educate, build relationships where they don’t exist, and provide a political strategy, as appropriate. Having this deep bench can help deter, deflect or at least better inform investigative activity. In an M&A context, Members of Congress have proven to be effective at influencing perception in the White House and among agency leadership.

In dealing with Congress, the memo advises that companies keep in mind the priorities of their various audience. For example, Senators focus primarily on impacts to their states, while House Committee leaders focus on national issues – and regulators and members of the majority are very concerned about the online reaction to high-profile issues and how that’s reflected back to them through their constituents.

– John Jenkins