USA Law and Practice Contributed by: Elena Rubinov, George Casey, Heiko Schiwek, Vinita Sithapathy, Pierre-Emmanuel Perais and Clara Pang, Linklaters LLP
requiring divestiture of businesses’ commitments to undertake certain actions; or • seek to block the deal in a US federal court. The agencies can also review business transactions that are not subject to notification under the HSR Act, as well as business combinations that have already been consummated. Recent Developments in US Merger Control In 2022 the DOJ and FTC updated their joint Merger Guidelines to address today’s complexities. The agen- cies under the current administration have kept these Merger Guidelines. The Merger Guidelines seek to expand potential theories of harm and shift the bur- den to merging parties, which could result in more extended reviews for certain technology mergers and increased interest from the agencies in a broader set of deals. Reviews could also be impacted by allega- tions of collusion on climate or other ESG factors under scrutiny in the current administration. New changes to the HSR filings came into effect on 10 February 2025, significantly increasing the burden of disclosure requirements on filing parties through more expansive productions of documents, narratives on market dynamics and information on the board membership of the acquiring person’s officers and directors. 5.6 Labour Law Regulations Employee benefit and executive compensation issues can significantly impact M&A transactions in the E&I sector, considering applicable federal, state and local laws. Employment and Labour Buyers must evaluate worker classification and verify employees’ proper visa status. The Worker Adjust- ment and Retraining Notification (WARN) Act and similar state statutes may require advance notice of layoffs or plant closures, or provide salary in lieu of notice. Given the operational nature of E&I assets, buyers should prioritise compliance with health, safety and environmental labour laws, reviewing any historical audits, investigations or claims reported to regula-
tory authorities. This is particularly critical for projects involving construction, power generation, transmis- sion infrastructure or industrial facilities. The US does not have statutory works council require- ments. However, buyers should determine whether employees are unionised, as collective bargaining agreements may impose consultation or notice obli- gations regarding workforce changes. Union repre- sentation is common in E&I operations, particularly in utilities, construction and maintenance workforces. US employment is typically “at will”. Parties should review employment arrangements to determine any broad-based severance programmes or change in control severance rights and post-employment restrictive covenants (the enforceability of which is determined on a state-by-state basis). Equity-Based and Incentive Compensation Buyers must review employee equity-based compen- sation plans and change-in-control impacts on out- standing equity-based awards. Treatment of equity- based awards involves consideration of contractual award terms, applicable securities laws, commercial priorities and limitations, and acquiror shareholder dilution. Employee Benefits Buyers should be aware of the Employee Retirement Income Security Act (ERISA), which governs certain employee benefit plans and their treatment in trans- actions. Retirement plans Buyers should evaluate benefit plan compliance, including 401 (k) and non-qualified deferred com- pensation plans, and determine treatment of plans, including whether termination is required prior to a change in control. For defined benefit plans, actuarial assistance may be needed to assess the plan’s funded position. The Pension Benefit Guarantee Corporation may become involved if either party has a significantly underfunded pension plan.
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