Francis Fryscak, Apr 29, 2013
Nearly four decades after enactment of the Hart-Scott-Rodino Antitrust Improvements Act is a good time to get one’s bearings on how antitrust deal work has changed, and how this evolving picture looks different to outside counsel and those in top-level positions in-house.
Two major shifts, occurring at roughly the same time, have affected deal work profoundly for both types of counsel. First, with respect to process, the HSR system changed the core paradigm of antitrust deal work—one that previously had the most antitrust sensitive transactions resolved in court—which had meant that, to be effective, practitioners needed to be litigators of the first order. Second, on substance, the core principles applied by the courts and the federal enforcers to evaluate deals have shifted to a single unifying principle—consumer welfare—replacing other, more varied concerns about the inherent dangers of concentrations of