6 Morrison Foerster 2 In 2023, U.S. and global antitrust agencies kept their promises to increase scrutiny of acquisitions. In 2024, the scrutiny is expected to continue and major administrative changes—including a new HSR form and recently finalized revised merger guidelines—if fully effected, will lead to more transactions subject to regulatory scrutiny, more time and effort for merger filings, ongoing monitoring of proposed settlements, if accepted, and the potential for protracted litigation, even after closing. Courts skeptical of non-traditional harms, but agencies press on. The FTC and DOJ were successful in blocking or securing divestitures for several transactions (e.g., ICE/Black Knight), but courts are rebuffing the agencies’ more novel theories. In California, the federal district court rejected preliminary injunctions for Meta/Within (alleging the deal would eliminate a nascent competitor) and Microsoft/Activision (alleging Microsoft would use this vertical combination to foreclose competing gaming console providers). The FTC has been especially aggressive in its use of internal administrative proceedings. For example, in Microsoft/Activision, the FTC resumed its internal challenge just weeks after the federal court trial loss. In April, the full Commission also overruled the findings of its own administrative law judge in Illumina/Grail, ordering Illumina, almost two years after closing, to divest Grail, with the Fifth Circuit agreeing with the Commission that Illumina’s acquisition would likely violate antitrust law, one of the rare instances where a court has found that a vertical merger would likely violate antitrust law.5 Following multiple deals where parties “litigated the fix” in court, both FTC and DOJ closed cases where the parties agreed to divestitures or other remedies, but the agencies have insisted upon ongoing conditions, such as the appointment of a monitor, to supervise compliance (e.g., Amgen/ Horizon Therapeutics, AssaAbbloy/Spectrum). State enforcers remain highly involved in merger review. For example, state attorneys general objected to the pre-closing payment of a special dividend by Albertson’s in connection with Kroger’s proposed acquisition, which they alleged would weaken Albertson’s prior to closing, but state and federal courts rejected their objections. New merger guidelines reveal an attempted paradigm shift. Antitrust: Continued Aggressive Enforcement and Major Shifts in Review Process
RkJQdWJsaXNoZXIy NTU5OTQ5