The Antitrust Review of the Americas 2017

United States: Mergers

30 August 2016

Aggressive enforcement continued to characterise the United States merger review process over the last year, with agencies requiring substantial divestitures in numerous deals and rejecting proffered remedies in several other deals that the agencies filed suit to block. While the agencies’ track record in these suits was mixed – winning major victories or causing the parties to abandon their deals in Staples/Office Depot, Electrolux/GE and BakerHughes/Halliburton, while losing litigated challenges in Steris/Synergy Health, Advocate/NorthShore and Penn State Hershey/PinnacleHealth – the upshot for parties is that the agencies remain willing to challenge competitive harm where they perceive it. The agencies have been notably active in challenging business-to-business (B2B) transactions where the perceived competitive harm is to very large corporations, while also continuing to pay close attention to transactions affecting healthcare and other consumer interests. The election year promises to result in changes in the leadership of the agencies, but there is little evidence that these changes will result in a reduction in enforcement activity (and some suggestions that the opposite may be true).

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