On December 18, 2023, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) released the 2023 Merger Guidelines. Following a 60-day public comment period that solicited over 30,000 comments from a variety of stakeholders, the finalized guidelines take a somewhat softer approach than the draft guidelines
Mergers & Acquisitions
Two Sides of a Different Coin: Separating Businesses and Subsidiaries for Liability Protection
By Ian Hurst on
A parent corporation is typically not held liable for the acts of a subsidiary. As such, disregarding the corporate form (i.e., by piercing the corporate veil) and holding the parent liable is an extraordinary remedy. That said, if a parent company exercises enough control over a subsidiary, however, courts may hold the parent liable. Because there is often some degree of overlap between a parent and its subsidiary, a question courts are often faced with is just how much control is enough to justify imposing liability on a parent for its subsidiary’s actions?
U.S. DOJ and FTC Release Long-Anticipated Revised Merger Guidelines
On the heels of the historic proposed changes to the Hart-Scott-Rodino (“HSR”) merger review process, the U.S. Department of Justice Antitrust Division and the Federal Trade Commission released the 2023 Draft Merger Guidelines for public comment. The single set of guidelines will replace the former horizontal and vertical guidelines, becoming…
Negotiating with a Noob M&A Target? Go Easy on Them, says Delaware Chancery
By Adam Farbiarz on
Buy-side executives in an M&A deal negotiate with their sell-side counterparts for months, plying them for information, assessing the seller’s weaknesses and pressure points, and even making informal entreaties when the parties’ standstill agreement says they shouldn’t —all to get the best deal for the acquirer. Under Delaware’s contractarian corporate regime—that would seem to be a good thing.
M&A Deals Face Additional Scrutiny under the FTC’s New HSR Reporting Rules
On June 29, 2023, the Federal Trade Commission published a Notice of Proposed Rulemaking that would dramatically expand HSR reporting requirements. The historic changes fundamentally alter the HSR reporting landscape, shifting to more of a “white paper” approach, similar to that of ex-U.S. jurisdictions like the EU. These modifications bring…
Proposed West Virginia Hospital Merger Could Have Nationwide Effects
By Alyse F. Stach on
West Virginia recently passed legislation aimed at shielding an in-state hospital merger from antitrust review by the Federal Trade Commission, and if the West Virginia Health Care Authority and West Virginia Attorney General approve the merger, other states could follow suit. Recent developments, including the FTC’s reaction to West Virginia’s proposed legislation, preview how future battles between the FTC and other states may unfold as the FTC continues to oppose state action grants of immunity from federal antitrust laws.