Trump Antitrust Shift Boosts Regulatory Lawyers in Deal Strategy

Top deals law firms are involving antitrust attorneys earlier in the process as the Trump administration emphasizes negotiation over court fights.

“We sit at the table right next to our antitrust partners early and often throughout the deal,” said Jim Langston, co-head of the mergers and acquisitions group at Paul Weiss. The firm worked on massive M&A transactions for Charter Communications and Keurig Dr Pepper last year.

Firms are seeing openings to collaborate with antitrust regulators to push transactions across the finish line. That’s a departure from the Biden era approach, in which the Federal Trade Commission and Justice Department took a harder line against mergers and other deals they viewed as anticompetitive.

The shift highlights law firms’ differing views of where antitrust practices fit within their organization structures. Several firms operate antitrust practices as standalone groups, while others house them within larger litigation departments or scatter them across groups.

Paul Weiss treats antitrust as part of both the firm’s transactions and litigation services. “We think that’s a big part of our value proposition,” Langston said “to put the best M&A lawyers and the best antitrust lawyers together under one roof on a global basis.”

Kirkland & Ellis, the global deals giant that has been bulking up its trial lawyer roster, embeds antitrust attorneys in its litigation group to ensure they ready to defend deals from government challenges.

“We’re letting them know, just on reputation and track record, that we are ready if necessary,” said Matt Reilly, an antitrust partner at the firm. His antitrust work includes guiding AbbVie in its $63 billion acquisition of Allergan and steering Bristol-Myers Squibb in its $90 billion acquisition of Celgene. Regulators factor litigation risks into the reviews of deals, according to Reilly, previously an FTC assistant director.

Kirkland was the second-leading legal adviser on global M&A transactions last year, steering more than $743 billion worth of deals, according to Bloomberg Law data.

The firm’s leaders have worked to soften Kirkland’s “wolves in wolves’ clothing” reputation in recent years and develop a more collaborative culture across transactions and litigation teams.

‘Cogs in the Machine’

Deals lawyers say US regulators have shown a renewed willingness to negotiate and work through M&A transactions in Trump’s second term.

The FTC has signaled that behavioral remedies—pledges to change business conduct after a deal is approved—are back in play. That follows a stretch in which the agency under Biden focused on blocking deals and often required structural changes, like selling assets, to address antitrust concerns.

Collaborations with the agencies are in full swing. Last year, the FTC required Synopsys and Ansys to divest assets to approve the $35 billion merger between the two companies. The agency used a behavioral remedy to permit Omnicom’s purchase of Interpublic by barring the new company from steering ad money to or from publishers based on politics.

Firms are turning to antitrust lawyers earlier to try to get ahead of regulatory problems rather than having to swoop in later and defend deals from attacks. They also need more time to complete paperwork requirements under the Hart-Scott-Rodino Act, which were expanded as part of a Biden FTC initiative.

Melissa Sawyer, co-head of Sullivan & Cromwell’s global M&A group, said some firm leaders are rethinking whether it “makes sense” to house antitrust in litigation departments. The Wall Street firm was among the top 20 M&A advisers last year, guiding deals involving Elon Musk’s X Corp. and Pinnacle Financial Partners.

That does not mean antitrust lawyers should be moved under the corporate transactions umbrella at most firms, said Christine Wilson, a former FTC Commissioner who now leads the antitrust practice for Freshfields. The firm operates a standalone antitrust practice.

“From an institutional perspective, my sense is that when antitrust and other so-called specialists are embedded in the corporate practice, they are viewed as service partners and cogs in the machine,” she said.

A standalone practice gives antitrust lawyers more autonomy as a group, said Brian Byrne, a partner at Cleary Gottlieb Steen & Hamilton. It allows them to operate as a “destination practice” for clients to seek advice without necessarily also turning to the same firm for litigation or M&A services. It also prevents turf wars and cultural skirmishes among lawyers from different groups.

“The trend is that clients are increasingly going to firms that have top antitrust practices separately, even if they like someone else on M&A work,” said Byrne, whose firm guided Synopsys on the Ansys deal.

If an antitrust group is too much of a subsidiary to either corporate or litigation, a firm risks “not giving the client everything,” he said.

Even Kirkland’s lawyers say they are benefiting from the administration’s more open approach to getting deals through antitrust review. That includes deals on which their transactions lawyers are advising.

Antitrust partner Andrea Murino helped steer through regulator review the sale of a private equity-backed company that owns oil change businesses to Valvoline, Inc., a deal announced last February. Although the company had to sell off some of its shops elsewhere to gain approval, Murino said the experience was smooth.

“It went through a process, which I found to be very transparent and collaborative,” she said. “I thought it was a real return to the norms that existed prior to Biden.”