2026 - Volume 2 - Summer - Flipbook - Page 18
-Anti-Trust and M&A: Continued from page 17-
Juniper merger.
state challenges an additional safeguard or a de facto
state veto over national transactions?
Additionally, companies engaging in M&A should,
early on, identify jurisdictions where the target and/or
acquirer have significant operations, employees, customers, suppliers, or economic impact, and accordingly evaluate the like interest(s) of the state AGs and of the relevant local, state, and federal legislators. Preemptive mitigation strategies such as direct outreach to those AG offices likely will be helpful.
Lessons Learned in Common
State attorneys general increasingly will sue to stop
mergers and acquisitions, even when federal antitrust
authorities approve a deal or settlement, especially if the
state AGs and the president are of different political parties. Because political tensions between certain states
and the federal government are higher than ever, companies seeking M&A must be sophisticated and alert to not
only potential regulatory roadblocks, but also the political ramifications for both federal and state regulators.
However, state AGs sometimes will sue or join a suit
against an administration of the same party if they differ
on policy or state/federal interests.
In the past, M&A and antitrust lawyers dealt with
state and federal regulators on a lawyer-to-lawyer basis,
but it is now much more common for clients to enlist well
-connected political and public relations consultants and
lobbyists who can properly and advantageously frame the
public relations conditions, arrange for early and frequent
educational meetings and discussions with regulators and
legislators, and smooth the path towards deal approval or
settlement. This is especially true if a regulator or legislator expressed hostility to a M&A or if the companies
believe that a regulator is on the verge of filing a complaint.
State AGs also may sue under their respective state
laws, such as California’s 1907 Cartwright Act, Cal. Bus.
& Prof. Code §§ 16720–16770, and New York’s 1899
Donnelly Act, N.Y. Gen. Bus. Law §§ 340-347; both are
considered broader than the federal Sherman and Clayton
Acts. Additionally, in California, all 58 county district
attorneys may enforce the Cartwright Act. Accordingly,
merging companies should anticipate that states could
delay final deal approval and adversely affect the public
relations battle.
Doing so unskillfully or clumsily, however, risks offending career staff (whether regulatory or legislative),
which can be detrimental for
