We Didn't Like Your Merger, So Please Come Back: FTC Issues New Prior Approval Policy For Challenged And Aborted M&A Transactions

The US Federal Trade Commission (FTC or Commission) has announced a new policy to dramatically expand its use of prior approval orders in merger transactions. On October 25, the FTC issued a policy statement (Statement) under which it will "routinely require merging parties subject to a Commission order to obtain prior approval from the FTC before closing any future transaction affecting each relevant market for which a violation was alleged," for "at least 10 years."¹

The Statement noted that the FTC may impose even broader preapproval provisions-potentially even outside the consent decree context-when parties have abandoned a transaction in the face of an investigation or lost a litigation with the FTC. The Statement also announced that the FTC intends to require all divestiture buyers to receive prior approval before selling divestiture assets for at least 10 years.