Antitrust agencies around the world continued, and even expanded, their heavy scrutiny of mergers. The new administration may bring some shifts in the United States, but likely will not reverse all of the prior administration’s policies, and regulators in other countries may continue or even increase their scrutiny. U.S. Antitrust: Shifting Priorities Return to Earlier Practices The Biden administration adopted a very aggressive stance on mergers, often seeking to block transactions outright rather than exploring remedies. While the first Trump administration also disfavored behavioral remedies, aimed at managing post-merger company behavior, the new Trump administration likely will be more receptive than the Biden administration to structural remedies, such as divestitures. The Biden administration’s push to require broad prior approval of future mergers as a condition to clearance is also likely to be reversed in favor of prior notice or narrower prior approval. Additionally, in connection with the new Hart-Scott-Rodino (“HSR”) rules (discussed below), regulators said they would reinstate the practice of granting early termination of the HSR waiting period in 8 See MoFo’s client alert, “DOJ and FTC Finalize New Merger Guidelines – What You Need to Know,” Dec. 21, 2023. 9 See MoFo’s client alert, “Tapestry/Capri Handbag Merger Temporarily Halted by S.D.N.Y.,” Oct. 29, 2024. 10 See MoFo’s client alert, “FTC Adopts Final HSR Rules, Substantially Expanding M&A Filing Requirements for Parties,” Oct. 13, 2024. certain situations, which had been suspended since 2021. Revisiting the 2023 Merger Guidelines The Merger Guidelines adopted at the end of 2023 represented a significant shift in antitrust policy.8 For example, in challenging the Tapestry/Capri merger, the FTC cited Tapestry’s pattern of acquisitions,9 which is mentioned as a potentially anticompetitive practice under the 2023 Merger Guidelines. The new administration could rescind the 2023 Merger Guidelines, possibly returning to the 2010 Horizontal Merger Guidelines and 2020 Vertical Merger Guidelines, which would signal less aggressive intervention, or could modify the 2023 Merger Guidelines, such as by raising the threshold for presumption of competitive harm in a merger. More Comprehensive HSR Filing Forms New rules for HSR filings, set to take effect February 10, 2025, would significantly increase the information required from filing parties. Key areas include ordinary course documents describing competition from the year before filing, documents shared with deal team leads in addition to officers and directors, customer and supplier lists where product or service overlaps exist, information regarding supplier relationships, and additional information regarding PE transactions, such as in some circumstances listing limited partners holding 5% or more of interests.10 The new administration may revise or rescind the new rules, but some companies now are hurrying to make their HSR filings, including by filing based on a letter of intent, before the new rules are scheduled to go into effect. Continued Scrutiny of Big Tech The strong antitrust enforcement environment for big tech that defined the Biden administration is unlikely to go away entirely. As a reminder, with respect to conduct enforcement, the landmark lawsuits against Google and Meta were filed originally by the first Trump administration. However, not all areas of the economy are likely to receive equal attention. For example, private equity—a target of the Biden administration— may face less aggressive oversight, reflecting a reallocation of resources toward other industries. Departure from Novel Theories of Harm Lina Khan’s tenure as chair of the FTC saw the adoption of untested or previously disfavored theories of harm—such as the bundling/ 2. Antitrust Policies Evolve 6 Morrison Foerster
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