USA Law and Practice Contributed by: G. J. Ligelis Jr., Christopher K. Fargo, Alyssa K. Caples and Margaret T. Segall, Cravath, Swaine & Moore LLP
Antitrust Under the Second Trump Administration The second Trump administration has some notable differences from the Biden administration when it comes to merger control. While the Biden administra - tion constructed a policy backdrop that deterred M&A through process, policy pronouncements, aggressive enforcement, and a refusal to adopt remedies, the cur - rent approach by the second Trump administration is characterised by a blend of continued vigilance and a return to more conventional, pragmatic enforcement. There is greater openness to traditional economic arguments, including efficiencies, and a heightened sensitivity to litigation costs. The focus is now on cases that clearly threaten competition under tradi - tional standards, with continued attention to criminal cartel enforcement, “Big Tech”, healthcare and other areas of interest. There is also a renewed willingness to resolve competition concerns through remedies rather than blocking deals outright. In the USA, acquisitions of private companies are typically effected through share purchases, asset pur - chases or mergers. Share purchase agreements are agreements between current and future sharehold - ers of a respective target company under which the future shareholders purchase the equity of the target from current shareholders. In the absence of an agree - ment otherwise in the share purchase agreement, all assets and liabilities of the target company will remain with the target company and will therefore be for the account of the future shareholders. Share purchase agreements are also most common for minority invest - ment and venture capital investment rounds. 3. Mergers and Acquisitions 3.1 Transaction Structures Investment in Private Companies In contrast to an acquisition of a business via a share purchase, an asset purchase does not affect the shareholder structure of the target company. The acquirer will only purchase the assets and liabilities that are identified (whether specifically or categori - cally) in the asset purchase agreement from the target company.
ment transactions in order to determine the effect of the transactions on the country’s national security. However, notwithstanding the implementation in 2018 of a mandatory filing regime (which was significantly revised in 2020), review by the CFIUS remains largely a voluntary process and the approval of the CFIUS is not required for most FDI transactions. Mandatory fil - ing is limited to certain transactions involving US busi - nesses that deal with critical technologies or critical infrastructure, or that collect or maintain sensitive per - sonal data. Investors from certain foreign states are exempted from some aspects of the CFIUS regime. More detail is provided in 7. Foreign Investment/ National Security . 2. Recent Developments and Market Trends 2.1 Current Economic, Political and Business Climate Current Environment M&A activity for US targets totalled USD1.4 trillion during the first three financial quarters of 2025, an increase of 25% compared to the level of activity seen during the first three financial quarters of 2024 and the strongest opening nine-month period for US deal making in four years. The US market’s share of global M&A by value in the first three financial quarters of 2025 was approximately 47%, which is down from 50% compared to the same period in 2024. CFIUS CFIUS continues to play a significant role in transac - tions involving foreign investment in a US business or US real estate, as the US government increasingly views investment screening as an essential national security tool. In 2025, CFIUS continued to closely scrutinise transactions raising potential national security considerations, including re-industrialisation issues, such as supply chain resilience and domestic manufacturing capabilities. Overall, enhanced review of FDI transactions and the diminished predictability of outcomes at CFIUS continue to generate uncer - tainty surrounding the risks governing foreign invest - ment in the USA.
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