12 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 13 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C Grail. Though the case was remanded on narrower grounds, Illumina ultimately abandoned the transaction and sought to divest Grail shortly thereafter. The favorable ruling – in another vertical transaction – demonstrated the Agencies can still prevail on difficult legal theories when they are able to show that a party to a transaction controls a large share of a market relevant to the analysis. The Agencies’ aggressive merger enforcement approach in 2023 indicates litigations seeking to block transactions outright rather than negotiate remedies will likely continue in 2024. Dealmakers considering possible transactions should take into account the lessons learned from these recent litigation challenges when considering their next deal. Revamping Merger Guidelines and Long-Standing HSR Rules In addition to an aggressive litigation agenda, the Agencies also pushed reform via revised antitrust rules and guidelines. In December 2023, the Agencies released the 2023 Merger Guidelines (“Guidelines”), which establish the framework and factors the Agencies will use to assess whether a merger violates the antitrust laws. While the Guidelines represent a significant shift from prior agency guidelines (which have been disavowed), they largely re-articulate and formalize the aggressive philosophy and approach to merger review that has been the hallmark of FTC and DOJ leadership under the Biden administration. A few of the most notable points from the new Guidelines include: ■ Lower market share and concentration thresholds for presumptively unlawful mergers; ■ Increased scrutiny of mergers that eliminate potential future competition; ■ Market share threshold and “plus factors” for assessing potential harm in vertical mergers; and ■ Formal assessment of a merger’s competitive impact on employees. In addition to the revised merger guidelines, the Agencies announced in June 2023 a Notice of Proposed Rulemaking that is poised to fundamentally overhaul the HSR Premerger Notification Process – the first comprehensive re-evaluation of the HSR Form since the HSR Act went into effect in 1976. According to Agency leadership, the proposed changes address key gaps in and inadequacies of the current HSR Form and enable the Agencies to analyze more effectively and efficiently the competitive effects of a proposed transaction within the initial 30-day waiting period to review a transaction. If implemented, the proposed changes will significantly increase the scope of information and documents that must be submitted with an HSR filing, resulting in substantial additional time, cost, and burden to parties with reportable transactions in the U.S. Some of the most significant proposed changes include: ■ Expanded scope of transactionrelated documents for submission; ■ Submission of certain ordinary course business plans or market reports; Antitrust Similarly, the Agencies must navigate the tension between their stated preference for litigations to block mergers and the realities of litigating cases with offered remedies on the table. Notwithstanding several losses in court, the Agencies appear committed to pressing on. T I
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