Antitrust Scrutiny Of Investors Under A New Administration

Under the old guard of the prior administration, private equity was repeatedly under fire for alleged "flip and strip" tactics that were supposedly "at odds with competition." Now, with new enforcers in place, a different landscape appears to be taking shape. Recent FTC and DOJ moves—a final consent order against PE shop Welsh Carson and a statement of interest backing Texas in its suit against institutional investors for ESG policies—may be the first signals of a new enforcement policy focused on traditional theories of harm applied against a broader (and more novel) set of targets.

KEY TAKEAWAYS

• Continued Willingness to Scrutinize Conduct of Minority Investors: The FTC and DOJ are continuing to exercise their antitrust oversight with investment management firms whose shareholdings may be used to coordinate or encourage anticompetitive strategies. In a departure from the prior administration, this oversight is not focused on private equity as a business model