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

by White & Case LLP
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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.

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