Mergers and Acquisitions

• Date: 02 June 2025

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CHAPTER III

MERGERS AND ACQUISITIONS

A. Introduction

Merger enforcement by the U.S. Federal Trade Commission (FTC),

the Department of Justice Antitrust Division (DOJ), and state attorneys

general in 2024 continued to expand upon the antitrust agendas pursued

by federal agencies during the Biden administration. Turning around a

series of trial defeats in 2023, enforcers successfully blocked multiple

mergers in court and saw several proposed transactions withdrawn

following review by the agencies. The DOJ and FTC won multiple merger

challenges in federal district court. Joined by attorneys general for six

states and the District of Columbia, the DOJ secured a permanent

injunction against JetBlue’s proposed acquisition of Spirit Airlines.1 The

FTC’s challenge of handbag makers Tapestry and Capri’s proposed

merger won a transaction-killing preliminary injunction by demonstrating

head-to-head competition and successfully arguing for an “accessible

luxury” relevant product market that excluded all other handbags.2 Joined

by state attorneys general of eight states and the District of Columbia, the

FTC also attained a decisive legal victory in its pursuit of a preliminary

injunction of the grocery chain merger of Kroger with Albertsons, which

the parties abandoned shortly thereafter.3 Both of these trial victories owed

some measure of their success to the extensive updates to the merger

review process that the agencies implemented with the FTC and DOJ 2023

Merger Guidelines.

Both the FTC and the DOJ initiated merger enforcement proceedings

that remain pending as of the time of this publication. The DOJ has a

lawsuit pending in federal district court to block UnitedHeath Group’s

proposed acquisition of home health and hospice provider Amedisys.4

1. United States v. JetBlue AirwaysCorp., 712 F. Supp. 3d 109 (D. Mass.

2024), appeal dismissed, No. 24-1092, 2024 WL 3491184 (1st Cir. Mar. 5,

2024).

2. FTC v. Tapestry, Inc., No. 1:24-CV-03109 (JLR), 2024 WL 4647809

(S.D.N.Y. Nov. 1, 2024).

3. FTC v. Kroger Co., 2024 U.S. Dist. LEXIS 223077 (D. Or. Dec. 10, 2024).

4. Press Release, U.S. Dep’t of Justice, Justice Department Sues to Block

UnitedHealth Group’s Acquisition of Home Health and Hospice Provider

Amedisys (Nov. 12, 2024), available at

60 2024 Annual Review of Antitrust Developments

A number of transactions were abandoned in 2024 in the face of DOJ

or FTC scrutiny. As reported by the agencies, three transactions were

abandoned in response to DOJ concerns,5 and four were abandoned in

response to FTC concerns or lawsuits.6 Additionally, the parties to one

proposed equity purchase agreement amended the terms of the purchase

https://www.justice.gov/opa/pr/justice-department-sues-block-

unitedhealth-groups-acquisition-home-health-and-hospice.

5. Press Release, U.S. Dep’t of Justice, Fresh Express Abandons Proposed

Acquisition of Dole’s Packaged Salad Business in Response to Antitrust

Division’s Concerns (Mar. 28, 2024), available at

https://www.justice.gov/opa/pr/fresh-express-abandons-proposed-

acquisition-doles-packaged-salad-business-response-antitrust; Press

Release, U.S. Dep’t of Justice, TopBuild Abandons Proposed Acquisition

of SPI After Antitrust Division Concerns (Apr. 22, 2024), available at

https://www.justice.gov/opa/pr/topbuild-abandons-proposed -acquisition-

spi-after-antitrust-division-concerns; Press Release, U.S. Dep’t of Justice,

Deputy Assistant Attorney General Michael Kades Statem ent After Airline

Group IAG Abandons Acquisition of Air Europa (Aug. 2, 2024), available

at https://www.justice.gov/opa/pr/deputy-assistant-attorney-general-

michael-kades-statement-after-airline-group-iag-abandons.

6. Press Release, Fed. Trade Comm’n, Statement Regarding the Termination

of Amazon’s Proposed Acquisition of iRobot (Jan. 31, 2024), available at

https://www.ftc.gov/news-events/news/press-releases/2024/01/statement-

regarding-termination-amazons-proposed-acquisition-irobot;Press

Release, Fed. Trade Comm’n, Statement Regarding the Termination of

Choice Hotel’s Proposed Takeover of Wyndham Hotels & Resorts (Mar.

12, 2024), available at https://www.ftc.gov/news-events/news/press-

releases/2024/03/statement-regarding-termination-choice-hotels-

proposed-takeover-wyndham-hotels-resorts;Press Release, Fed. Trade

Comm’n, Statement Regarding the Termination of Qualcomm’s Proposed

Acquisition of Autotalks (Mar. 25, 2024), available at

https://www.ftc.gov/news-events/news/press-releases/2024/03/statement-

regarding-termination-qualcomms-proposed-acquisition-autotalks;Pr ess

Release, Fed. Trade Comm’n, FTC Statement Regarding WillScot’s

Decision to Abandon Proposed $3.8 Billion Acquisition of Competitor

McGrath RentCorp (Sept. 18, 2024), available at

https://www.ftc.gov/news-events/news/press-releases/2024/09/ftc-

statement-regarding-willscots-decision-abandon-proposed-38-billion-

acquisition-competitor.

Mergers and Acquisitions 61

to abandon acquisition of specific assets in response to concerns raised by

the FTC and the Office of the Maine Attorney General.7

Also in 2024, the FTC and DOJ issued new rules for pre-merger

notification under the Hart-Scott-Rodino (HSR) Act. The changes took

effect on February 10, 2025.8 The updated rules require filers to provide

additional information on transaction rationale and disclosures about

ownership structures, narrative descriptions of the competitive overlaps

for each of the business lines of each filer to reveal existing areas of

competition between the merging firms and supply relationships and

implement other changes, discussed below.9

4. Enforcement Mechanisms and Guidelines

Publication of the 2023 Merger Guidelines brought several changes to

the types of anticompetitive effects that agencies would consider in their

reviews of proposed mergers as well as changes to thresholds the agencies

use to evaluate whether anticompetitive effects are likely to occur if a

merger is consummated.10 Some of these changes have been criticized as

unreasonable, with parties to transactions arguing that courts should

continue to utilize standards from the 2010 merger guidelines. The district

court opinion regarding Kroger’s proposed merger with Albertsons

directly addressed disputes between plaintiffs and defendants as to

whether it should reject changes adopted in the 2023 merger guidelines in

favor of the 2010 edition. Kroger argued that the changes and novel

approaches described in the 2023 guidelines were inappropriate (e.g., that

the 2023 HHI thresholds were “unreasonably low” and that the Clayton

7. Press Release, Fed. Trade Comm’n, FTC Statement on Amendment to

Global Partners, Gulf Oil Acquisition (Apr. 9, 2024), available at

https://www.ftc.gov/news-events/news/press-releases/2024/04/ftc-

statement-amendment-global-partners-gulf-oil-acquisition.

8. See Premerger Notification; Reporting and Waiting Period Requirements

(RIN 3084-AB46), available at

https://www.federalregister.gov/documents/2024/11/12/2024-

25024/premerger-notification-reporting-and-waiting-period-requirements.

9. Press Release, Fed. Trade Comm’n, FTC Finalizes Changes to Premerger

Notification Form (October 10, 2024), available at

https://www.ftc.gov/news-events/news/press-releases/2024/10/ftc-

finalizes-changes-premerger-notification-form.

10. U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, MERGER GUIDELINES

[hereinafter 2023 Merger Guidelines], available at

https://www.ftc.gov/system/files/ftc_gov/pdf/P234000-NEW-MERGER-

GUIDELINES.pdf.