A judge denied the Federal Trade Commission’s (FTC) bid to block the merger between GTCR and Surmodics, which is the first defeat of a merger challenge brought during President Trump’s second term.
McCarter partner and former DOJ antitrust attorney Robin Crauthers spoke with MLex about how litigating the fix, a practice in which merging parties put forward a divestiture package for analysis by the court following the FTC’s rejection of a merger, was a successful strategy in this instance.
“This was about the competition issues being resolved by the proposed fix. The idea that the FTC can dictate when the parties propose a fix isn’t the judge’s concern,” said Robin. “The court will evaluate merger cases not on the day the merger was signed, but on the deal structure bring pushed forward at the time it goes to trial.”
Robin also noted that this could lead parties in the future to design and litigate a fix they didn’t fully flesh out with the agency during the discovery or investigative phases, and that could make it difficult for the agencies to navigate.