USA Trends and Developments Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn, Veltrop & Harkrider LLP
es, the new rules expand the scope of required document production to include certain ordi - nary-course plans and reports from the preced - ing year. Additionally, the revised HSR Rules require narrative descriptions of the parties’ transaction rationales, horizontal overlaps, and vertical supply relationships, which are similar to (though generally briefer than) narratives current - ly required for notifications in other jurisdictions. These changes to the HSR reporting require - ments are designed to accelerate the agencies’ access to substantive information about trans - actions that might otherwise have been sought on a voluntary basis in the initial HSR waiting period. But they do impose additional burdens on parties to transactions, particularly the addi - tional document production requirements. It remains to be seen whether the agencies will relax some of the new requirements as they and the bar gain experience with the new Form. Ongoing aggressive enforcement In announcing his commitment to the 2023 Guidelines and support for the changes to the HSR filing requirements, Chair Ferguson has signalled that merger control enforcement under the second Trump administration will likely con - tinue to be aggressive. That theme has been reinforced in other informal statements by the agency heads. For example, both Chair Fergu - son and Assistant Attorney General Slater have emphasised the importance of ensuring that antitrust enforcement benefits American work - ers who “need competition for their work to raise wages and improve working conditions” – a pol - icy priority of the Biden administration reflected in the 2023 Guidelines. These statements fit squarely with Slater’s belief that antitrust is a ”critical tool” in the American Republican Par - ty’s populist “realignment away from big busi - ness and – under President Trump’s leadership
– toward the working class that is reconnecting the party with its roots”. Signalled departures from Biden administration policy While Republican economic populism suggests some continuity of enforcement priorities from the Biden administration, there are important ways in which Trump administration officials have indicated they intend to adopt a more work - able merger control regime for business than their predecessors. In particular, administration officials have signalled a greater openness to negotiated merger remedies and less scepticism of transactions involving private equity. Negotiated remedies Under the Biden administration, negotiated merger settlements plummeted. This was the product of a deliberate policy decision by agen - cy leadership: shortly after his appointment to lead the DOJ Antitrust Division, Assistant Attor - ney General Kanter announced that, “when the [DOJ] concludes that a merger is likely to lessen competition, in most situations we should seek a simple injunction to block the transac - tion”. Kanter explained that this commitment was motivated by his preference to make new precedent in litigation and his scepticism of the agencies’ ability to reliably predict the effective - ness of a proposed divestiture. Leadership at the FTC made similar comments about ”focusing [its] resources on litigating, rather than settling” merger challenges, in light of the “checkered” history of negotiated remedies. Public statements from new agency leadership have eliminated this hostility to merger settle - ments. Most notably, Assistant Attorney Gen - eral Slater has invited parties to bring meaningful divestiture proposals where they feel it is appro - priate to resolve agency concerns. Chair Fergu -
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