FTC Restores Prior Approval Policy For Merger Restrictions

The FTC restored its past practice of requiring merging parties to obtain prior approval from the FTC "before closing any future transaction affecting each relevant market for which a violation was alleged" (emphasis in original).

In the Prior Approval Policy Statement, the FTC stated that it will include prior approval provisions in merger divestiture orders for a minimum of 10 years for each market in which alleged harm occurred. Further, in a case in which the parties abandon the transaction during litigation, the FTC stated that it will determine whether to pursue a prior approval order based on the following, non-exhaustive, list of factors:

• whether the transaction is "substantially similar" to a prior challenged transaction;