Antitrust Mergers and Regulatory Uncertainty

Antitrust Mergers and Regulatory Uncertainty

D. Daniel Sokol

USC Gould School of Law; USC Marshall School of Business

Marissa Ginn

Robert Calzaretta

Marcello Santana

Abstract

Estimating antitrust risk is fundamental to identifying, proposing, and pricing deals. A more informed understanding of what to expect when meeting with agency staff and leadership will help antitrust lawyers and economists (or other consultants) anticipate the critical questions and potential paths that should be addressed regarding antitrust merger risk. This article uses practitioner surveys to understand whether and how the change in the Biden administration’s antitrust agenda has affected merger review, investments, decision making, and counsel. The surveys also offer antitrust agencies an opportunity to think about the optimal design of the merger control system and various consequences of certain policy choices and institutional design changes. A quantitative online survey was conducted first, followed by qualitative discussions with practice group leadership across top antitrust law firms. Both studies were designed to identify whether respondents perceived any substantive shifts from prior administrations to the Biden administration, the impact of such shifts (if any) on merging parties, and any notable differences between the DOJ and FTC in enforcement and procedures. Our surveys indicate that practitioners have a more critical perception of the FTC and DOJ compared to prior administrations. Both agencies are perceived as less transparent and less fair in their interactions with merging parties. The enforcement process is seen as more demanding in terms of scope of data collected and is reported to take longer to complete. The agencies have also departed from precedent as they increasingly scrutinize labor issues and vertical deals.