Haidee Schwartz Discusses Impact of the FTC's 'Prior Approval' Ruling

Akin Gump antitrust partner Haidee Schwartz was quoted by MLex for its article “Comment: US FTC's 'prior approval' policy another feather in Chair Khan’s cap, headache for companies.” The article examines the U.S. Federal Trade Commission’s (FTC) recent ruling to “restrict companies involved in anticompetitive mergers from engaging in future deals without its approval.”

According to the article, this decision shifts the onus from the FTC onto the company to prove a merger is not anticompetitive. Schwartz, who served as FTC Acting Deputy Director, Bureau of Competition, said a “side effect [of the decision] is that it might discourage mergers with a pretty natural fix. So, some companies will try and fix it before they ever file HSR.”

Schwartz noted that the new policy could significantly impact the lifecycle of a deal, saying that “under prior approval, there is no clock. Thus, it could take a very extended time to clear and close a transaction subject to prior approval, even if the Commission ultimately clears it. Transactions with no competitive issues may still be abandoned if the Commission timeline stretches from many months to more than a year.”