Federal judges’ shift in treatment of “litigating the fix”—from skeptical to accepting—in which merging companies seek to alleviate anticompetitive concerns in court rather than through the Hart-Scott-Rodino filing process is reshaping the landscape of the merger-approval process. Recently, Federal Trade Commission (FTC) Chair Andrew Ferguson warned merging companies against making late changes to deals once the commission files an antitrust challenge in court. McCarter & English partner and former DOJ Antitrust Division attorney Robin Crauthers spoke with Corporate Counsel about this strategy and said once the merger process is in federal court and outside their hands, the agencies have “very little say in what a court does or doesn’t do, and then the court’s going to follow the federal rules.” While Ferguson can try to discourage companies from litigating the fix, “I don’t think there’s power there for the FTC,” she added.
11.14.2025