Taiwan: Cross-border opportunities amid global change: Future antitrust merger enforcement in the United States

by White & Case LLP

White & Case LLP

What does the 2016 US presidential election mean for antitrust policy in the United States? Less than six months into the new administration of Donald J. Trump, what do we know about the president's antitrust merger enforcement priorities? What can we expect from US antitrust agencies in the years ahead?

During the preceding Obama administration, the US antitrust agencies pursued a relatively aggressive merger enforcement posture, often in parallel with the European Union's approach to global clearances. This continued a trend of apparently more aggressive government challenges to proposed mergers that began under recent US presidents.

With the election of President Trump, the antitrust community has debated the question of how antitrust enforcement under the Trump administration might differ from that of past administrations. Many antitrust practitioners have expressed concerns about the future of antitrust merger enforcement in the US. Some point to statements and actions by President Trump as evidence that his administration might incorporate the populist themes he communicated on the campaign trail into his antitrust enforcement. Others insist the differences will be small and amount to little more than a slight course change to a less-interventionist approach, generally in line with the posture of past Republican administrations.

For Taiwanese businesses interested in conducting or financing any transactions that could receive merger review and antitrust scrutiny in the US, battle lines are already being drawn on a number of key topics that will affect how you may do business in the US.

While much remains unclear about how the new US president and new leadership at both the US Department of Justice (DOJ) and the Federal Trade Commission (FTC) will impact US merger enforcement, here is what we know so far—and the many questions that still remain.

Less interventionist approach to merger enforcement is likely

The new Trump administration has not yet filled several high-level antitrust enforcement positions.

However, signs of a relatively traditional, less interventionist approach to antitrust enforcement—similar to past Republican administrations—is beginning to emerge.

President Trump's antitrust nominees so far, including individuals to serve as Acting Director and Acting Chairman for the FTC's Bureau of Competition and as head of DOJ's Antitrust Division, appear likely to pursue their enforcement objectives through a policy of "regulatory humility," which promotes the idea that markets should be free of "unnecessary" regulation. These new antitrust leaders have expressed the belief that governmental intervention and merger review must include a rigorous application of economics before considering whether to challenge a transaction. 

US$7.0 billion

Taiwan's foreign direct investment in the US (stock) was US$7.0 billion in 2015, up 14.1% from 2014.

Office of the US Trade Representative

Unprecedented potential for direct presidential involvement

President Trump has not been shy about making his views known directly to the public, including through his Twitter account, to an unprecedented degree. His supporters have praised this willingness to share his opinions with the public in such a direct and seemingly impromptu way. But how will US antitrust enforcers react if the president praises or strongly opposes a proposed deal (perhaps with a highly negative label like "Bad. A Job Killer")?

Certain transactions—especially ones involving current hot-button political issues—could attract particular scrutiny from this president. In fact, antitrust officials could feel explicit pressure to consider public-interest issues, like jobs, as a factor in merger reviews. Will the Trump administration attempt to weigh jobs as part of the overall merger review process?

Other key questions

Current antitrust leadership at the DOJ and the FTC have expressed a renewed focus on intellectual property rights. What role will antitrust enforcers play in preserving and encouraging innovation? This is a major issue that will be closely analyzed under the Trump administration.

In addition, how will large global transactions fare under the Trump administration, given the "America first" rhetoric promoted by the president and some of his closest advisors? Recent years had seen a steady increase in international antitrust agency cooperation. Will it continue?

These and other issues add to the many unknowns surrounding how the Trump administration and its antitrust leadership will conduct themselves when it comes to antitrust merger enforcement. Only time will tell. However, most signs indicate that the Trump administration will most likely pursue traditional objectives similar to those of his Republican Party predecessors.

Written by:

White & Case LLP

White & Case LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.