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M&A activity in 2016 and the first half of 2017 remained at high levels, and competition authorities in the United States, European Union and other jurisdictions continued to be very aggressive, in some instances challenging high-profile deals in court, causing some parties to abandon their transactions rather than litigate, and in other instances requiring parties to commit to extensive divestitures to avoid court challenges and obtain approvals. Although the change in U.S. administration has led to some softening of expectations for near-term enforcement in the United States, the authorities have remained active in 2017, and the agencies’ recent string of successes in high-profile deals ensures that companies can expect an aggressive approach to deals presenting competition issues. Against this backdrop, deal practitioners can expect to be increasingly confronted with the prospect of negotiating significant and often complex divestitures in order to obtain antitrust and competition approval for M&A transactions.

These divestiture transactions, in themselves, pose unique challenges in terms of, among other things, board process, auction and negotiating dynamics with third-party purchasers, conflicting regulatory requirements across borders, and timing coordination among divestitures and the overall transaction. While this article is primarily focused on general antitrust and competition regulation, reviews by industry-specific regulators can create similar considerations.

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