USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn
1. Legislation and Enforcing Authorities 1.1 Merger Control Legislation Merger Control Legislation The primary merger control legislation in the US is Section 7 of the Clayton Act, which prohibits acquisi - tions that may substantially lessen competition. The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”) (Section 7A of the Clayton Act) governs the pre-merger notification process. Mergers may also be challenged under the Sherman Act, which prohibits agreements that unreasonably restrain trade (Section 1) and monopolisation, attempts to monopo - lise and conspiracies to monopolise (Section 2), or Section 5 of the Federal Trade Commission Act (the “FTC Act”), which prohibits unfair methods of com - petition. States, as well as the District of Columbia, Puerto Rico and the Virgin Islands, have their own antitrust laws, many of which are analogous to the federal antitrust statutes, and may also challenge mergers under the federal antitrust laws. Merger Guidelines The FTC and the Antitrust Division of the Department of Justice (DOJ) (the “Agencies”) share jurisdiction over merger review. In December 2023, the FTC and DOJ released updat - ed Merger Guidelines, which describe the “factors and frameworks” the Agencies use to review proposed mergers. The 2023 Merger Guidelines continue to shape Agency merger review and enforcement priori - ties. The Guidelines reflect continued antitrust scrutiny of transactions, including lower market concentration thresholds, and increased focus on serial acquisitions, labour market effects, vertical theories of harm, and potential competition. Agency Rules and Guidance The FTC is authorised to issue formal regulations that are “necessary and appropriate” to carry out the pur - poses of the HSR Act. The “HSR Rules” are complex and extensive, and address reportability, exemptions and filing procedures. Significant revisions to the HSR rules took effect on 10 February 2025 that significantly increased the scope of information and documents required for an HSR filing. However, in February 2026, a federal trial court in Texas struck down the revised
HSR rules for having exceeded the FTC’s statutory authority. In March 2026, the US Court of Appeals for the Fifth Circuit denied the FTC’ s motion for a stay pending appeal. As a result, since 19 March 2026, the revised 2025-era HSR rules have been suspended, and procedures have reverted to the less-burden - some, pre-2025 regime. The FTC’s Premerger Notification Office also issues guidance relating to the application of the HSR Act and related regulations in the form of both formal and informal interpretations. 1.2 Legislation Relating to Particular Sectors Sector-Specific Approvals Transactions within highly regulated sectors of the economy, such as banking, healthcare, insurance, telecommunications, railroads and defence, may also require approval from their federal or state sectoral regulators. For example: • banking transactions may require approval by the Federal Reserve Board; • telecom transactions may require approval by the Federal Communications Commission; • transactions involving energy companies may require approval by the Federal Energy Regulatory Commission; • mergers of insurance companies may require approval by state Commissioners of Insurance; and • mergers of healthcare organisations may be sub - ject to review and approval by state health depart - Both the FTC and DOJ enforce the federal antitrust laws and share jurisdiction over merger review under the Clayton Act and the HSR Act. The FTC also has authority to challenge mergers under the FTC Act. In addition, the FTC manages the HSR pre-notification regime. Under Section 16 of the Clayton Act, State Attorneys General can also seek to enjoin mergers. The Agencies allocate merger cases through a co- operative clearance process that is primarily based on the expertise of each Agency. The FTC tends to investigate mergers relating to healthcare, pharma - ments and antitrust agencies. 1.3 Enforcement Authorities Primary Enforcement Agencies
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