On November 9, Neely Agin, co-chair of Winston's Antitrust and Competition Transactions Practice, participated in a panel at the GCR Live: Women in Antitrust Conference in Washington, DC. The conference brought together female practitioners, enforcers, economists, and in-house counsel in the competition industry and included a keynote address by Margaret Goodlander, Deputy Assistant Attorney General of the U.S. Department of Justice (DOJ).
Neely's panel―"Times of Increasing Deal Uncertainty"―covered consolidation, the efficacy of traditional merger remedies, and the ramifications of recent industry trends. In particular, Neely and the other panelists discussed the new theories of harm that antitrust enforcers around the globe are exploring and how this changing environment is creating uncertainty with the regulatory approval and expected timeline of deals.
KEY TAKEAWAYS
- In the United States, both the DOJ and Federal Trade Commission (FTC) have publicly commented about what they view as "rampant consolidation." The panelists identified two key themes they see emerging in merger review based on these concerns: 1) uncertainty and 2) extended review and/or delays.
- The DOJ and FTC have both indicated a willingness to litigate and not accept proposed remedies that they may previously have accepted, which is creating increasing uncertainty as to which deals will pass regulatory approval. Further, leadership at both the DOJ and FTC have expressed skepticism over structural remedies, and a willingness to test novel legal theories in order to challenge proposed transactions. Divestitures are still an option for parties, but they appear to now be the exception rather than the rule.
- We also are seeing an increase in the number of requests for parties to pull and re-file their Hard-Scott-Rodino submissions to give the regulators more time, as well as an increase in the number of Second Requests being issued, which increases significantly the timeline to gain regulatory approval of a transaction.
- Finally, the panel discussed the need for parties to ensure they coordinate their filings across multiple jurisdictions. The regulatory agencies from different countries are speaking to one another and often coordinating, so it is important to have consistency across the jurisdictions.