Litigation Is Coming: The Top 5 Best Practices for In‐House Counsel to Manage Merger Review Risk

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“I am concerned that merger remedies short of blocking a transaction too often miss the mark.” – Jonathan Kanter, Assistant Attorney General. In his first address as Assistant Attorney General (AAG) for the Antitrust Division at the Department of Justice, Jonathan Kanter invoked his “role model” and predecessor, Robert Jackson, who held the AAG position in 1937. According to AAG Kanter, Jackson “embark[ed] on an aggressive campaign of antitrust enforcement to free markets from the grip of monopoly power.” Jackson’s first year as AAG featured “dozens of cases, including the landmark challenges against Socony‐Vacuum Oil Company and the Aluminum Company of America.” With Jackson as inspiration, AAG Kanter’s Antitrust Division appears poised to wield litigation as a favored tool in merger enforcement. The Federal Trade Commission, too, has signaled equally aggressive enforcement under Chair Lina Khan, who listed as her first policy priority: “address[ing] rampant consolidation and the dominance that it has enabled across markets. This will require [] finding ways to strength our merger enforcement . . . .” Merging parties should therefore anticipate antitrust scrutiny, including by preparing for litigation. Being litigation‐ready starts well before a complaint is filed, and in‐house counsel play a critical role. This article highlights five best practices in‐house counsel can adopt today to smooth the road for deals tomorrow.