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By: Elaine Johnston, Puja Patel, Ben Stievater | A&O Shearman

Until relatively recently, private equity buyers were viewed as largely benign. Where antitrust regulators expressed concerns with private equity buyers, it was generally in the context of them being viewed as sub-optimal divestiture buyers. This changed during the Trump administration where the Democratic minority began to voice concerns about the incentives of private equity players.

The rhetoric has increased in intensity during the Biden administration which has brought challenges targeting private equity buyers and their role in serial acquisitions, issued new Merger Guidelines explicitly targeting serial acquisitions, and proposed a revamp of the HSR pre-merger process that asks for additional information on prior deals. Absent from the discussion has been a clear articulation of why private equity ownership in and of itself increases competitive concerns. However, despite a recent set back in the Welsh Carson challenge and the lack of an articulated rationale, the role of private equity in serial acquisitions remains under the regulatory microscope.

Introduction

Until relatively recently, private equity buyers were viewed as largely benign. Unlike strategic buyers, they often made acquisitions that did not increase concentration, and if they followed up with a subsequent acquisition in the same industry, this was viewed as no different from any other deal involving competitors. While s......................

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