M&A Deals Under New Merger Guidelines: Enhanced Antitrust Scrutiny, Lower Market Concentration Thresholds
Recording of a 90-minute premium CLE video webinar with Q&A
This CLE webinar will discuss the 2023 Merger Guidelines issued jointly by the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC). The panel will highlight the need for companies to plan carefully for M&A activity and to anticipate an increased likelihood of additional regulatory antitrust scrutiny and litigation for certain transactions.
Outline
- Role of Merger Guidelines
- Tool/framework for agencies and public
- Potential guidance to courts
- Comparison of new Guidelines with draft Guidelines that were released in July 2023
- Overview of the new Merger Guidelines
- The 11 separate guidelines agencies will apply to determine the competitive effects of a merger
- Evidence considered/standards
- Approach to market definition
- Defenses (e.g., efficiencies, failing firm defense)
- How the new Guidelines compare to recent case law
- Interplay between the new Guidelines and proposed revisions to the HSR filing requirements
- What potential antitrust concerns and solutions parties should consider early in the merger process
- Key takeaways and practical considerations
- New Guidelines and their impact on courts' views and decisions
- Future of the new Guidelines if a new administration takes office in 2025
Benefits
The panel will review these and other key issues:
- The rationale behind the new Merger Guidelines and comparison between the final version and the earlier draft
- The 11 separate guidelines that will be used in determining whether a transaction is potentially anticompetitive
- How the new Merger Guidelines reflect the government's enforcement priorities
- How practitioners should advise clients considering M&A activity in light of these new Guidelines
Faculty
Henry J. Hauser
Counsel
Perkins Coie
Mr. Hauser has significant experience with antitrust litigation, investigations, and advocacy. He started his career as... | Read More
Mr. Hauser has significant experience with antitrust litigation, investigations, and advocacy. He started his career as a trial attorney with the U.S. Department of Justice (DOJ), Antitrust Division, where he led the division’s first criminal prosecution of an e-commerce conspiracy. Mr. Hauser’s work at the division also included criminal investigations and litigation in the liquid crystal display, automotive parts, and capacitors industries. In addition, he was part of the trial team that successfully challenged a $54 billion merger in the health insurance industry. Mr. Hauser also worked in the Technology Enforcement Division of the U.S. Federal Trade Commission (FTC) and he is currently an adjunct professor at the University of Colorado School of Law where he teaches Antitrust Law.
Close
Michael H. Knight
Partner
Jones Day
With more than 25 years of experience as an antitrust lawyer in both government and private practice, Mr. Knight... | Read More
With more than 25 years of experience as an antitrust lawyer in both government and private practice, Mr. Knight advises clients on a full range of competition law matters including mergers, joint ventures, competitor collaborations, distribution issues, price discrimination, monopolization, and intellectual property restraints. He routinely represents clients before federal and state antitrust agencies and federal courts. Mr. Knight also co-heads the firm’s Hart-Scott-Rodino Act premerger notification team. He served as an assistant director of the FTC’s Bureau of Competition from 2003 to 2007, heading the Bureau's Mergers II Division, where he oversaw hundreds of investigations across an array of industries including technology, chemical manufacturing, mining, and agriculture. Mr. Knight has held various leadership positions in the ABA's Section of Antitrust Law over the past 18 years and currently serves on the editorial board of the Section's Antitrust Source publication. He writes and speaks frequently on antitrust enforcement topics.
Close
Christopher A. Williams
Partner
Perkins Coie
Mr. Williams focuses his practice on antitrust issues related to commercial transactions, including mergers and... | Read More
Mr. Williams focuses his practice on antitrust issues related to commercial transactions, including mergers and acquisitions; joint ventures and other strategic collaborations; licensing of intellectual property; and pricing, supply, and distribution agreements. His experience includes cross-border matters involving regulatory authorities in China, Japan, South Korea, and Europe. Mr. Williams advises on all aspects of merger control, including evaluating regulatory clearance; advising on transaction structure and antitrust risk allocation in M&A agreements; preparing merger notification filings, including under the Hart-Scott-Rodino Antitrust Improvements Act; advocating for clients in Second Request investigations by the DOJ and FTC; directing strategy in merger reviews by foreign competition authorities; advising on remedy proposals and negotiations; representing interested third parties and divestiture buyers; and providing guidance on diligence, integration planning, and other pre-closing matters.
Close