Antitrust M&A Snapshot - May 2019

McDermott Will & Emery


In the first quarter of 2019, vertical merger enforcement continued to be a hot topic for the US antitrust agencies. The Court of Appeals upheld the district court’s decision in the AT&T/Time Warner transaction, finding that the Department of Justice (DOJ) did not meet its burden of proof in challenging this vertical transaction. At the Federal Trade Commission (FTC), the FTC approved two vertical transactions with behavioral remedies, but the Democratic Commissioners strongly objected, arguing that the remedies did not adequately address the vertical aspects of the transaction. These cases point to divergence among the FTC Commissioners on the proper approach to vertical merger enforcement further complicating the vertical merger landscape under the Trump administration. However, there is some hope that merging parties will receive some clarification on vertical merger enforcement because the DOJ has been working on an update of its Non-Horizontal Merger Guidelines and may join forces with the FTC in drafting new guidance on vertical transactions.


In the first quarter of 2019, the European Commission (EC) closed and cleared six merger control proceedings where remedies were required, including acquisition by global players such as BASF and Spirit. The EC also prohibited two mergers, which is highly unusual, stating that the proposed remedies were not sufficient or too complex to address its competition concerns. Although the German and French governments placed political pressure on the EC to approve the Siemens/Alstom railway products transaction, the EC blocked the transaction, reaffirming that industrial policy objectives have no role to play when it comes to applying EU merger control rules.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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