“We must ensure that the merger guidelines reflect current economic realities … and that they guide enforcers to review mergers with the skepticism the law demands. The current guidelines deserve a hard look to determine whether they are overly permissive.” —Joint statement by FTC Chair Lina Khan and Antitrust Division Acting Assistant Attorney General Richard A. Powers, July 9, 2021.
It’s no secret we have entered an era of increased antitrust enforcement, where any perceived threat to fair markets and competition will be subject to serious scrutiny from the FTC and DOJ. The billion-dollar risk is whether this increased regulatory scrutiny will thwart completion of big M&A deals, while at the same time potentially destroying equity value, market capitalization and goodwill of the participants all in a single blow. Clearly, the rules of the game are changing and we need to be able to break the new code for successful M&A deal completion.
Further, President Joe Biden’s July 2021 nomination of Jonathan Kanter to lead the DOJ’s antitrust division is yet another sign of government intent to battle corporate America to ensure more competition in the tech industry and across U.S. markets as a whole. Taken together, these indicators demonstrate a heavy-handed approach.
This article lays out an approach to break the code for successful Second Request response to significantly reduce corporate risk, increase the likelihood for approval to complete large M&A deals and identify the critical resources needed.
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