Mergers and acquisitions are facing dual changing regulatory landscapes with respect to antitrust review and enforcement, and foreign investment into U.S. businesses under CFIUS. Both sets of changes represent aggressive tightening, make is more challenging to gain approval, and add costs and time to deals that ultimately do win clearance. New theories of harm being advanced under both regulatory regimes means having to evaluate new risks, and procedural changes under both regimes means navigating new waters. In this article we address what’s happening at both agencies, how it is impacting M&A, what it means for getting deals done, and how to navigate the new norms.
By John R. Ingrassia1
I. Antitrust/HSR
We have seen a number of noteworthy developments with respect to Hart-Scott-Rodino (“HSR”) reporting and merger review more generally under the new administration and under new agency leadership. With the surge in M&A activity reportedly “straining” the Federal Trade Commission’s resources, several new tactics have come into play that impact not only merger review and clearance, but the way mergers are getting negotiated. While the heavy attention that all things antitrust is currently getting from Congress and the agencies will likely result in landscape shifts in enforcement policy and priorities for years to come, some of what’s already been implemented and is already underway is having immediate impact. The general
...