conglomerate theory in the Horizon/Amgen deal—and an interest in exploring the labor market impacts of mergers. These approaches met limited success in court as the FTC failed in its attempts to block several mergers, including Microsoft/Activision Blizzard and Meta/Within. With Chair Khan’s departure likely, a return to more traditional theories of harm, which focus on consumer welfare, appears imminent. Moreover, the FTC’s sweeping 2024 rule banning noncompete agreements—blocked by courts but appealed by the FTC11—may be reconsidered or rescinded under the new administration. Uncertainty Surrounding Non-U.S. Antitrust Issues International agencies have moved toward greater collaboration in antitrust enforcement. However, differing priorities—particularly the embrace of novel theories of harm by some non-U.S. regulators—could hinder future cooperation. Presidentelect Trump’s policy of favoring America first may lead to increased scrutiny of transactions involving non-U.S. 11 See MoFo’s client alert, “FTC Appeals Texas Court’s Ruling Blocking FTC’s Non-compete Ban,” Oct. 22, 2024. 12 See MoFo’s client alert, “Illumina Grail: European Court Limits Commission Jurisdictional Reach in Merger Cases,” Oct. 3, 2024. Article 22 of the EU Merger Regulation allows member states to request that the European Commission review an acquisition that does not meet the EU-wide thresholds for mandatory notification if they believe the acquisition affects trade between member states and could significantly affect competition within their territory. entities (although more likely under national security laws). European Union: Continued Appetite To Review NonNotifiable Mergers The risk of intervention by the European Commission where transactions do not cross traditional merger control notification thresholds remains. In September, the European Court of Justice ruled that the European Commission’s review of Illumina’s $8 billion acquisition of Grail, which was referred from several member states but did not trigger merger control filings at EU or member state-level, was unlawful.12 However, the new European Competition Commissioner has signaled that capturing acquisitions of targets with low revenues but high competitive and innovative potential (so-called “killer acquisitions”) is among her top priorities. Eight member states have already introduced national laws enabling them to request the notification of below-threshold transactions (so-called “call-in powers”) if these deals could have a significant competitive impact. Others are considering introducing such powers. We expect to see continued use of below-threshold review powers, particularly in digital and pharmaceutical markets and in the AI space. The new administration may revise or rescind the new [HSR] rules, but some companies now are hurrying to make their HSR filings … before the new rules are scheduled to go into effect. Client Alert DOJ and FTC Finalize New Merger Guidelines – What You Need to Know Client Alert Tapestry/Capri Handbag Merger Temporarily Halted by S.D.N.Y Client Alert FTC Adopts Final HSR Rules, Substantially Expanding M&A Filing Requirements for Parties Client Alert FTC Appeals Texas Court’s Ruling Blocking FTC’s Non-compete Ban Client Alert Illumina Grail: European Court Limits Commission Jurisdictional Reach in Merger Cases 2024 M&A Annual Review 7
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