Deputy Assistant AG Reinforces DOJ's Tough M&A Antitrust Stance

Deputy Assistant Attorney General of the DOJ Antitrust Division Andrew Forman stated that although transaction filings have significantly increased in recent years, the DOJ must remain ready to investigate and potentially litigate all transactions believed to be in violation of federal antitrust laws.

In remarks to the ABA M&A Committee at the Business Law Section Annual Meeting, Mr. Forman expressed concern that some industries have recently shifted towards the practice of submitting anticompetitive merger agreements to the DOJ instead of taking the time to submit adequate agreements. He argued that certain industries would sooner submit an agreement and just accept the suggested "fixes" rather than craft an adequate, competitive agreement prior to engaging with the DOJ. While he agreed that these structural solutions can be beneficial in certain situations, he cautioned that behavioral remedies - such as firewalls or corporate promises - raise additional potential issues and will require significant resources to monitor. Accordingly, Mr. Forman said that the DOJ will continue to "closely scrutinize settlement proposals and evaluate them with healthy skepticism," setting a high standard for the DOJ to feel comfortable approving a merger.

Additionally, Mr. Forman reminded companies that they must submit completed Hart-Scott-Rodino Act filings when submitting merger agreements. He warned that failure to comply with the requirements may result in delayed reviews and, more significantly, may also paint a false or misleading picture of the proposed transaction. He stated that the DOJ will continue to monitor for incomplete filings and other "gun-jumping" issues arising from attempts to quickly move forward with mergers and implement deals.