January 27, 2023

Volume XIII, Number 27

Advertisement

January 27, 2023

Subscribe to Latest Legal News and Analysis

January 26, 2023

Subscribe to Latest Legal News and Analysis

January 25, 2023

Subscribe to Latest Legal News and Analysis
Advertisement

DOJ Continues to Emphasize Antitrust Merger Enforcement

The Deputy Assistant Attorney General of the Antitrust Division of the U.S. Department of Justice (DOJ), Andrew Forman, recently spoke to the American Bar Association’s Mergers and Acquisitions Committee at the Business Law Section annual meeting.

Mr. Forman’s prepared remarks provide several insights into current DOJ thinking on mergers and acquisitions.

Echoing prior comments from the Federal Trade Commission, Mr. Forman emphasized that the number of filings in 2021 and 2022 pursuant to the Hart-Scott-Rodino Antitrust Improvements Act continues to exceed levels of the previous decade. Nevertheless, he reiterated that DOJ will continue to be ready to “investigate and, as necessary, litigate” those transactions that the agency believes violate the antitrust laws. In that vein, Mr. Forman indicates that DOJ will evaluate the parties’ divestiture settlement offers with “a healthy skepticism” that weighs multiple factors, all of which are focused on the likelihood of continued business success for the divested assets. Similarly, he noted that DOJ’s bar for structural remedies (for example, the creation of firewalls) “will continue to be high.”

Mr. Forman also raised the issue of gun-jumping, noting that deal documents often contain a standard clause to prevent the seller from entering into material contracts without notice or approval from the buyer. These agreements are often intended to preserve the assets of the seller. Mr. Forman points out that such provisions could, in certain circumstances, give the buyer undue control over the seller and, rather than be treated as standard contractual verbiage, should be evaluated on a fact-specific basis to determine their legality.

©2023 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume XII, Number 342
Advertisement
Advertisement
Advertisement

About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney
Member

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

202-861-1825
Patricia M. Wagner, Epstein becker green, health care, life sciences
Member

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of...

202-861-4182
Advertisement
Advertisement
Advertisement