Mergers and acquisitions (M&A) are fundamental aspects of corporate strategy, enabling businesses to grow and diversify. However, these transactions can also pose significant risks to market competition. Antitrust regulations are designed to prevent anti-competitive practices and ensure that M&A deals do not harm consumers or stifle innovation.
Antitrust review process.
Companies planning an M&A deal often undergo an antitrust review to assess the potential impact on competition. The Federal Trade Commission (FTC) and the Department of Justice (DOJ) are mainly responsible for enforcing antitrust laws in the United States.
The FTC and DOJ review proposed large transactions to determine whether they raise antitrust concerns. Here is an overview of the antitrust review process.
- Filing requirements: Companies planning mergers, acquisitions, or joint ventures exceeding $90 million must file a notification with the FTC and DOJ under the Hart-Scott-Rodino Antitrust Improvements Act (HSR Act). This includes providing detailed information about the companies’ business operations, the structure of the merger, and relevant market data.
- Initial review: During the initial review, the FTC and DOJ determine whether the transaction poses potential antitrust concerns. They assess market concentration, the potential for reduced competition, and the likelihood of higher prices or reduced innovation.
- Second Request: The agencies may issue a second request for additional information and documents if concerns are identified. The second request can be lengthy and costly, often requiring significant resources from the companies involved.
- Decision: After reviewing all the information, the agencies can take several actions: they may approve the deal, negotiate remedies (such as divestitures or behavioral commitments) to address competitive concerns, or seek to block the transaction through litigation.
Companies must navigate the regulatory landscape carefully, understanding antitrust reviews’ requirements and potential outcomes. It is advisable to seek legal advice to avoid legal pitfalls, ensure compliance, and complete transactions that benefit both the market and consumers.
Key scenarios where M&A deals can violate antitrust regulations
Mergers or acquisitions can violate antitrust laws if they considerably lessen competition or tend to create a monopoly, with the DOJ and the FTC assessing such risks using several guidelines. Key scenarios include:
- Increasing market concentration, as measured by the Herfindahl-Hirschman Index (HHI)
- Eliminating substantial competition between merging parties, mainly if they were significant competitors before the merger
- Raising the risk of anticompetitive coordination among remaining firms
- Eliminating potential market entrants
- Limiting access to products or services vital for rivals to compete
- Entrenching or extending a dominant market position
- Contributing to industry trends towards consolidation
- Forming part of multiple acquisitions
- Involving multi-sided platforms that can harm competition between platforms, on a platform or displace a platform
- Merging between competing buyers, such as employers, that lessens competition for workers, suppliers, or creators.
- Acquiring partial ownership or minority interests that might affect the target company’s conduct
Each case needs a careful review of the details using various tools to see if it might harm competition. Antitrust regulations are important to keep the market fair and protect consumers. Authorities carefully scrutinized M&A deals to ensure they do not lead to unfair market practices or harm consumer interests.