Category Archives: Mergers & Acquisitions

Extracting Value Amid Rising Risk: Compliance and M&A Pressures in the Global Resources Sector

by T. Markus Funk, PhD, Stephen Shergold, David Lewis, and Allan Taylor

photos of authors

Left to Right: T. Markus Funk, Stephen Shergold, David Lewis and Allan Taylor (Photos courtesy of White & Case LLP)

The natural resources extraction industry—spanning mining, oil and gas, and critical minerals—faces an increasingly complex compliance, legal and regulatory environment. Over the next three years, operators will encounter heightened scrutiny across environmental, social and governance (ESG) domains, as well as greater geopolitical and enforcement risks.

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Do the Enforcement Choices Match the “America First” Antitrust Rhetoric?

by Bilal Sayyed

Bilal Sayyed (photo courtesy of Cadwalader, Wickersham & Taft LLP)

Gail Slater, the Assistant Attorney General for the Antitrust Division, Department of Justice, suggests that the antitrust leadership of both political parties “underenforced our century-old antitrust laws for several decades,” accepting “false economic theories of self-correction” of markets negatively impacted by anticompetitive conduct and dominant firms.  Gail Slater, The Conservative Roots of America First Enforcement (Apr. 28, 2025).  Federal Trade Commission Commissioner Mark Meador recently criticized “the monstrously swollen firms who’ve hollowed out communities, raised prices, distorted labor markets, corrupted the public square, or otherwise degraded quality across [the] economy.” “Antitrust enforcement is,” according to Meador, “one of the most powerful, economy-wide tools available for addressing” a “dehumanization of economic life” associated with “the size and power of the largest companies” that have “ballooned to unprecedented levels.” Mark Meador, Antitrust’s Populist Soul (Sept. 15, 2025). “Big is bad.” Mark Meador, Antitrust Policy for the Conservative (May 1, 2025).

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Shareholder Activism: Ten Trends for 2026

by David Katz, Elina Tetelbaum, and Loren Braswell

Photos of authors

From left to right: David Katz, Elina Tetelbaum, and Loren Braswell (photos courtesy of Wachtell, Lipton, Rosen & Katz)

Shareholder activism is at record levels and is no longer limited to the “proxy season.” Dozens of U.S. activist situations are underway for 2026 annual meetings, well before the windows for nominations open at most targeted companies. Activists are preparing for the fall conference circuit at which they will debut many of their 2026 campaigns, already working behind the scenes at companies by contacting their management, directors, investors, employees, sell-side analysts, and other key constituencies. Here are ten trends to expect for the year ahead.

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Antitrust Insights from the Administration’s First Six Months

by Ilene Knable Gotts, Nelson O. Fitts, Damian G. Didden, Christina C. Ma, and Emily E. Samra

Left to right: Ilene Knable Gotts, Nelson O. Fitts, Damian G. Didden, Christina C. Ma, and Emily E. Samra (photos courtesy of Wachtell, Lipton, Rosen & Katz)

As predicted, antitrust merger enforcement under the second Trump Administration exhibits a return to a more restrained approach at both the Federal Trade Commission and the Antitrust Division of the Department of Justice.  Most refreshingly, the agencies appear committed to good faith engagement with merging parties.  The FTC lifted its four-year “temporary” suspension of early terminations of the HSR waiting period, and a senior Division official recently stated that the DOJ will “not send ‘scarlet’ letters warning parties that they ‘close at their own risk’”—a practice adopted under the prior administration.  In recent orders, the FTC highlighted the importance of Commission staff and merging parties working together in “good faith” during merger reviews.  In public statements, both the FTC and DOJ have eschewed “turning the HSR review into an extortion racket.” These commitments reflect a welcome return to established patterns of antitrust practice, where proactive engagement with regulators can lead to efficient outcomes for lawful transactions.  

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Trump Administration Signals Strong Approach to Antitrust Enforcement

by Sheila R. Adams James, Ronan P. Harty, Christopher Lynch, Mary K. Marks, Suzanne Munck af Rosenschold, Howard Shelanski, Caroline Ziser Smith, and Jesse Solomon

Top left to right: Sheila R. Adams James, Ronan P. Harty, Christopher Lynch, and Mary K. Marks. Bottom left to right: Suzanne Munck af Rosenschold, Howard Shelanski, Caroline Ziser Smith, and Jesse Solomon. (Photos courtesy of Davis Polk & Wardwell LLP)

As the first month of the Trump administration comes to a close, we provide updates on key developments in Trump 2.0 antitrust enforcement, particularly focused on merger review.  Early hints suggest that the Trump administration may be more measured in moving away from the Biden administration’s aggressive approach on antitrust than many observers initially anticipated.

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FTC’s Consent Order Against Marriott: Expectations for Reasonable Security

by Erez Liebermann, Jim Pastore, Christopher S. Ford, Michael Bloom, Mengyi Xu, Achutha Raman, and Michelle Shen  

Photos of the authors

Top left to right: Erez Liebermann, Jim Pastore, Christopher S. Ford, Michael Bloom.
Bottom left to right: Mengyi Xu, Achuta Raman and Michelle Shen. (Photos courtesy of the authors.)

Introduction

On December 20, 2024, the Federal Trade Commission (the “FTC”) finalized a consent agreement (“Consent Order”) with Marriott International, Inc. and its subsidiary Starwood Hotels & Resorts Worldwide LLC (collectively, “Marriott”) to settle allegations that Marriott failed to implement reasonable data security measures, resulting in three large data breaches from 2014 to 2020 and affecting more than 344 million customers worldwide. With obligations extending 20 years, the Consent Order requires Marriott to, among other remedial steps, implement a comprehensive information security program (“ISP”) with prescribed security measures, the effectiveness of which will be subject to a third-party independent biennial assessment. Key elements of the required ISP include multi-factor authentication (“MFA”), encryption, asset inventory, written documentation, and vulnerability and patch management. The final Consent Order is materially identical to the proposal announced on October 9, 2024.

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M&A Antitrust Alert: FTC Imposes Significant Gun-Jumping Penalty for Unlawful Pre-Merger Coordination Among Crude Oil Producers

by Reb D. Wheeler, William H. Stallings, Scott P. Perlman, Oral D. Pottinger, Gail F. Levine, Andrew J. Stanger, Joshua W. Eastby, and Brian E. Saleeby 

Top left to right: Reb D. Wheeler, William H. Stallings, Scott P. Perlman, and Oral D. Pottinger. Bottom left to right: Gail F. Levine, Andrew J. Stanger, Joshua W. Eastby, and Brian E. Saleeby (Photos courtesy of Mayer Brown LLP)

M&A practitioners have long regarded the integration planning and execution process as one of the keys to a successful M&A transaction. However, in deals subject to pre-merger antitrust clearance, it is critical to navigate the line between deal provisions and arrangements intended to preserve the value of the target business and allow the parties to prepare for post-closing integration, versus those that could result in the buyer exerting control over the target business or accessing competitively sensitive information prior to closing in a manner that could be seen as potentially harming competition in violation of the US antitrust laws. This conduct, commonly referred to as “gun-jumping,” can result in investigations by the Federal Trade Commission (FTC) and the Justice Department’s Antitrust Division (DOJ) as well as significant civil penalties for violation of the pre-merger notification and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”).

A noteworthy complaint filed by the DOJ on January 7, 2025, at the request of the FTC, serves as a reminder of the risks to merging parties of not properly navigating these considerations during the pre-closing period. DOJ’s complaint alleges that the Defendants, merging crude oil producers XCL Resources Holdings, LLC (“XCL”), Verdun Oil Company II LLC (“Verdun”), and EP Energy LLC (“EP”), engaged in gun jumping in violation of the HSR Act by allowing Verdun and XCL to immediately assume control over certain of EP’s day-to-day business operations and by exchanging non-public, competitively sensitive information (CSI) before the HSR Act’s waiting period had elapsed. The proposed settlement provides for a $5.6 million civil penalty, which the FTC heralded as “the largest dollar penalty imposed for a gun-jumping violation in U.S. history.”[1]

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Five Must-Watch Antitrust Storylines for 2025

by Gail F. Levine, Rachel J. Lamorte, Lauren E. Knudson, Mia Ruiz, William H. Stallings, and Ora Nwabueze

Photos of the authors

Top left to right: Gail F. Levine, Rachel J. Lamorte, and Lauren E. Knudson. Bottom left to right: Mia Ruiz, William H. Stallings, and Ora Nwabueze. (Photos courtesy of Mayer Brown)

Many businesses and organizations are in the unique position of having already observed four years of antitrust enforcement under President-elect Donald J. Trump. That, plus the well-publicized records of his announced nominees for antitrust positions, provides heightened insight into enforcement priorities for his second term.

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The FTC Finalizes Sweeping Changes to HSR Reporting Obligations

by Ilene Knable Gotts, Christina C. Ma, Monica L. Smith and Gray W. Decker

From left to right: Ilene Knable Gotts, Christina C. Ma, Monica L. Smith and Gray W. Decker. (Photos courtesy of Wachtell, Lipton, Rosen & Katz)

On October 10, 2024, the Federal Trade Commission (“FTC”), with the concurrence of the Antitrust Division of the Department of Justice (“DOJ”), announced the FTC’s unanimous vote to adopt a final rule implementing significant changes to the reporting obligations under the Hart-Scott-Rodino Antitrust Improvement Act (“HSR Act”).  Though not as extensive and burdensome as the original proposed changes (see our prior memo analyzing the proposed changes), these changes will increase parties’ filing burden and limit their ability to file quickly, even in non-problematic transactions.  Absent judicial intervention, the final rule will become effective 90 days after it is published in the Federal Register (i.e., approximately mid-January 2025).  The FTC also announced that, once the final rule goes into effect, it will lift the three-and-a-half-year “temporary suspension” of granting early termination of the HSR waiting period in transactions not needing further agency investigation.

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Wachtell Publishes Financial Institutions M&A Guide for 2024

Editor’s Note: This post contains excerpts from Wachtell, Lipton, Rosen & Katz’s Guide: “Financial Institutions M&A 2024: Seizing Opportunities, Navigating Pitfalls,” the full version of which is available here. 

by Ed Herlihy, Richard Kim, Nick Demmo, David Shapiro, Matt Guest, Mark Veblen, Brandon Price, and Jake Kling

Photos of the authors

Top left to right: Ed Herlihy, Richard Kim, Nick Demmo, and David Shapiro
Bottom left to right: Matt Guest, Mark Veblen, Brandon Price, and Jake Kling
(Photos courtesy of Wachtell, Lipton, Rosen & Katz)

KEY TRENDS IN FINANCIAL INSTITUTIONS M&A DURING 2023

I. M&A FALLS FOR A SECOND CONSECUTIVE YEAR OWING TO GEOPOLITICAL, MACROECONOMIC AND REGULATORY FACTORS

Financial institutions M&A fell for the second year in a row in 2023. Like most other sectors of the economy, financial institutions faced significant M&A headwinds during the year, including geopolitical instability, elevated inflation, high interest rates, challenging and often volatile equity markets, enhanced antitrust risks and uncertainty, and recessionary fears that softened only towards the end of the year.

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