Mergers & Acquisitions 2022 Annual Review

2022 M&A ANNUAL REVIEW The recent spending bill increased funding for DOJ and FTC and implemented some potentially significant changes: 1. preventing litigation brought by state attorneys general under the federal antitrust laws from being consolidated in multidistrict litigation (MDL), allowing state AGs (AGs) greater ability to keep such litigation in a favored venue, even if there is an active MDL; 2. increasing HSR filing fees for high-value deals; and 3. requiring disclosure in HSR filings of subsidies received from “foreign entit[ies] of concern,” including entities owned or controlled by, or subject to the jurisdiction or direction of, China, Russia, Iran, or North Korea. International Enforcement. International developments have paralleled the more aggressive approach to antitrust in the United States and, in some instances, have gone even further. ■ The European Parliament passed the Digital Markets Act, intended to prevent digital platform “gatekeepers” from abusing their market power and to allow new players to enter the market. ■ International agencies have been active in enforcement, notably with the European Commission deciding to try to prevent Illumina’s acquisition of Grail after the deal had been greenlighted by the FTC’s administrative judge. Also, the UK’s Competition and Markets Authority and the United States DOJ announced their investigation into the Cargotec and Konecranes merger, resulting in the parties abandoning their deal. On the Horizon. With both United States agencies rounding out their leadership teams in 2022, 2023 likely will continue the trend of aggressive enforcement actions. The agencies will adopt new merger guidelines that include new, more-expansive thinking about potential harms to competition and liability. Mergers will likely be scrutinized under the new merger guidelines. DOJ’s pending appeals in United States Sugar and United , trials in ASSA Abloy/ Spectrum and Microsoft/Activision , and the conduct litigations involving Google and Meta will provide more instances to observe whether courts are sympathetic to increased enforcement efforts or continue to reject this approach, as largely seen in 2022. Additionally, Republican control of the House will result in new priorities and likely increased scrutiny of ESG and antitrust. With both U.S. agencies rounding out their leadership teams in 2022, 2023 likely will continue the trend of aggressive enforcement actions. Read more from our Antitrust Group, including the following recent client alerts: FTC Announces New Increased HSR Filing Thresholds for 2023 and Congress Increases Merger Filing Fees for Large Deals and Makes Other Significant Changes.