Private merger challenges can be messy, time consuming, and
expensive, particularly when a private plaintiff is seeking to
unwind a previously consummated transaction. Plaintiffs seeking
divestiture from private merger challenges rarely have been
successful, and such cases tend not to move the needle too much
because they are often fact specific and thus limited in their
application. In February 2021, however, the Fourth Circuit Court of
Appeals granted divestiture in a private merger challenge years
after the merger had been consummated. The court's decision
raises several key questions. Will the decision be far reaching?
What guidance does it provide for future merger challenges? How
will merger challenges be presented in the future under Section 7
of the Clayton Act or Section 2 of the Sherman Act? And how will
current Congressional proposals to dramatically change federal
antitrust law contribute to the conversation?
