DealLawyers.com Blog

This Cooley memo highlights some key takeaways from the first year of antitrust enforcement under Trump 2.0. This excerpt discusses some of the important ways that the DOJ & FTC have been more friendly to M&A than they were during the Biden administration:

‘Getting out of the way’ of nonproblematic deals. [FTC Chair Andrew] Ferguson summarized his view on merger enforcement: “If we think [a] merger is going to hurt Americans economically, I’m taking you to court. But if we don’t, we’ll get the hell out of the way.” Echoing this sentiment, the DOJ has also prioritized expediting reviews and redirected agency resources to identify those deals quickly and clear them without unnecessary delay.

A significant procedural update, which had been set in motion by the Biden administration, was the return to the practice of granting “early terminations” of statutory waiting periods under the HSR Act. Historically, early termination had been granted in about 80% of transactions where it was requested. There is not yet sufficient data available to assess if the cadence is similar.

Revival of structural remedies.  A welcome development for dealmakers in 2025 was the return of merger remedies, often involving divestiture. Unlike the previous administration, which viewed remedies with skepticism and increasingly preferred litigation (though it did enter into some consents despite the rhetoric), current regulators are more open to addressing concerns with structural remedies in settlements.

In 2025, the DOJ and FTC brought 12 enforcement actions challenging mergers, nine of which resulted in consent orders. The agencies have tended to prefer divestitures, as reflected in the consents in Boeing/Spirit, ACT/Giant Eagle and Synopsys/Ansys, while a few other settlements involved behavioral remedies, as in Omnicom/IPG.

The memo cautions that while the environment is more deal-friendly than in recent years, the agencies are still willing to litigate if they aren’t happy with the deal and any proposed remedies.

– John Jenkins