Fenwick’s Tom Ensign Discusses the Antitrust Landscape for Mergers Going into 2022

By: Thomas Ensign

Fenwick antitrust and competition partner Tom Ensign spoke with Law360 Pulse about the potential effects of shifting Federal Trade Commission and Justice Department enforcement guidelines on the busy deal market.

Ensign told the publication that “much of the difference is in the policy direction being articulated by the Biden appointees and the progressive direction we anticipate the antitrust authorities are going to go, because it's the direction they've told us they're going to go.”

Ensign added that it could still be too early to see the effects, as the DOJ’s antitrust head Jonathan Kanter was confirmed this past November and FTC chair Lina Khan has been in her role just seven months. Once the FTC and DOJ antitrust units are filled out, he said, businesses could expect more investigations.

Ensign also pointed out that longer FTC investigations could make proposed mergers more expensive. “At least in terms of the statements made by Khan, it seems as if [the agency's] perception is that a longer investigation may have a chilling effect on M&A activity generally,” he said.

Companies are also facing new questions about a merger's impact on the labor market and privacy, as the FTC pushes beyond its traditional focus on consumer welfare and prices of goods.

Still, he thinks the mergers market will adjust. “Nothing has occurred to suggest that somebody who was going to do a deal is now not going to because of the changes at the FTC and the DOJ.”

The full article is available on Law360 (subscription required).

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