USA Law and Practice Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn, Veltrop & Harkrider LLP
examples of the type of information typically requested. Parties that receive second requests may enter into a timing agreement with the Agency estab - lishing protocols for compliance with a second request, milestone dates for events leading up to substantial compliance, and extensions of time for the Agency to make an enforcement deci - sion after waiting period expiry. Both Agencies have published model timing agreements on their websites. 3.11 Accelerated Procedure All transactions subject to HSR notification requirements must complete an HSR filing. There is no short form or simplified procedure. Historically, the Agencies granted “early termi - nation” of the initial waiting period for transac - tions that posed little competitive risk. If early termination is granted, the names of the parties to the transaction are published in the Federal Register and posted on the FTC’s website. In February 2025, the Agencies resumed granting early termination, after the programme had been suspended since February 2021. A detailed guide to the Agencies’ approach to merger analysis is contained in the 2023 Merger Guidelines. The 2023 Merger Guidelines outline a wide range of theories of competitive harm for both horizontal and non-horizontal transactions, and signal aggressive merger enforcement. In general, the Agencies review a proposed transaction to determine whether the transaction will create, enhance or entrench market power 4. Substance of the Review 4.1 Substantive Test
or facilitate its exercise. The Agencies consid - er whether a horizontal transaction is likely to reduce competition or negatively impact con - sumers (eg, result in increased prices or reduced output, quality or innovation) either because (i) the merged firm will have sufficient market pow - er such that raising prices or reducing output, quality or innovation will be profitable, or (ii) there will be so few firms left in the market that the remaining firms will be able to co-ordinate their conduct. The Agencies consider vertical issues of whether a transaction will combine market power at different levels of the supply chain in a manner that might create the incentive and abil - ity to disadvantage rivals or provide access to competitively sensitive information of competi - tors. The Agencies also examine trends towards consolidations, serial acquisitions, multi-sided platforms, potential competition, labour mar - ket effects, and the potential impact of minority interests, among other issues. To block a transaction, the Agencies must show in court that a transaction is likely to substantially reduce competition or tend to create a monopoly in a relevant market. 4.2 Markets Affected by a Transaction Affected markets are defined on both a product and geographic dimension. In general terms, relevant product markets comprise all the prod - ucts and services that customers perceive as close substitutes; a geographic market is that area where customers would likely turn to buy the goods or services in the product market. Over the past few years, the Agencies have also focused on a transaction’s potential effects on labour markets, particularly where the parties draw their workforce from a common pool of employees.
720 CHAMBERS.COM
Powered by FlippingBook