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What are the potential outcomes of a merger control investigation in the USA?

Both the Federal Trade Commission (FTC) and the Department of Justice (DOJ) have the authority to seek to enjoin or unwind a merger that they believe is likely to harm competition. A merger investigation has four potential outcomes:

  • No action is taken by the reviewing agency, in which case the parties are free to close the transaction at the expiration or early termination of either the initial Hart-Scott-Rodino waiting period or the waiting period following issuance of a request for additional information and documentary material.
  • The parties are allowed to close the transaction based on negotiated structural and/or behavioural remedies that resolve the reviewing agency’s antitrust concerns.
  • The reviewing agency attempts to block the merger via litigation. To block a transaction, the DOJ must sue in federal court. The FTC may use its own internal administrative proceeding for the trial on the merits. Both the FTC and the DOJ may seek a preliminary injunction in federal court that prevents the parties from closing the transaction during the pending litigation.
  • The parties may abandon the transaction before conclusion of the Hart-Scott-Rodino process.

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