At TransPerfect Legal's fifth annual Antitrust Clearance and Merger Enforcement Conference (ACME), hosted by the TransPerfect Legal Antitrust Practice Group, industry experts gathered to discuss evolving regulatory changes. Amanda Norton, Assistant Vice President and Senior Legal Counsel at AT&T; Heather Greenfield, Partner at White & Case; and Kail Jethmalani, Partner at Axinn, Veltrop & Harkrider LLP, explored how regulatory agencies continue to broaden their analytical framework beyond traditional competition metrics. As antitrust lawyers refine their review strategies and client guidance, this blog highlights key takeaways from the panel discussion on labor market analysis, heightened private equity scrutiny, implementation strategies, and risk assessment methods shaping merger reviews.

The Evolution of Competition Analysis

Recent shifts in the Department of Justice (DOJ) and Federal Trade Commission (FTC) approaches have expanded merger review beyond conventional price impact assessments. This broader analytical framework now scrutinizes transactions through multiple lenses, including workforce impact, innovation capabilities, and societal implications.

Recent shifts in the Department of Justice (DOJ) and Federal Trade Commission (FTC) approaches have expanded merger review beyond conventional price impact assessments. This broader analytical framework now scrutinizes transactions through multiple lenses, including workforce impact, innovation capabilities, and societal implications.

Labor Market Analysis: Essential Considerations

Labor market impact has become a critical factor in merger reviews, compelling antitrust practitioners to develop new methods of data collection and analysis. This expanded scope requires early engagement with clients' human resources (HR) departments and a thorough evaluation of workforce data management systems. Practitioners should anticipate requests for detailed workforce analytics, including wage data, employment terms, and recruitment patterns across geographic markets.

Key preparation strategies should include:

• Early assessment of clients' HR data infrastructure and accessibility
• Development of standardized approaches to workforce impact analysis
• Development of standardized approaches to workforce impact analysis
• Creation of templates for common HR-related document requests

Strategic Approaches to Private Equity Transactions

Private equity matters demand focused attention on serial acquisition strategies and portfolio company connections. Agencies increasingly examine effects across multiple deals, requiring lawyers to assess competitive impacts throughout portfolios. This includes monitoring board structure, market intersections, and business dynamics. Enhanced oversight of these transactions, particularly in the healthcare sector, necessitates specialized frameworks and compliance methods.

 

Practical Implementation Strategies

Success requires establishing robust processes before regulatory examination begins. Key elements include:

1. Document Management Architecture:
   • Centralized transaction document repositories
   • Standardized filing and categorization systems
   • Communication retention protocols
   • Systematic tracking of board memberships and organizational relationships
2. Compliance Framework:
   • Comprehensive antitrust compliance programs that address expanded review areas
   • Regular training programs covering document creation and retention
   • Clear guidelines for internal communications about competitive matters
   • Clear guidelines for internal communications about competitive matters
3. Data Management Systems:
   • Protocols for regular data mapping and accessibility assessments
   • Standardized approaches to data collection and organization
   • Clear procedures for handling sensitive HR and workforce information
   • Regular audits of data management systems and processes
4. eDiscovery Service Provider Partnership:
   • Engage eDiscovery service provider early to map out workflows, if second request is likely
   • Leverage technology early on (potentially utilize TAR and other tools during HSR process ahead of anticipated second request)
   • Clear procedures for handling sensitive HR and workforce information
   • Manage client expectations (timing and costs) from the beginning

Risk Assessment and Management

Antitrust lawyers must create evaluation frameworks that go beyond conventional analysis. This includes assessing workforce effects across all employee levels and evaluating the impact of ESG initiatives on market dynamics. In technology sectors, innovation assessment becomes critical, as research capabilities and intellectual property often drive competitive advantage. For consumer-facing operations, security and privacy considerations are paramount. Private equity clients require thorough analysis of cumulative effects, given that agencies view acquisitions as connected rather than isolated events

Forward-Looking Considerations

Success in modern antitrust practice demands a substantial expansion of expertise beyond traditional competition law. Practitioners must develop a deep understanding of labor market economics, ESG metrics and analysis frameworks, privacy and data security regulations, and innovation ecosystem dynamics. Building strong relationships with specialists has become essential, as effective merger analysis often requires input from labor economists, ESG consultants, data privacy experts, and industry specialists who can address sector-specific competitive dynamics.

Additionally, practitioners must implement systematic approaches to monitoring and analyzing regulatory enforcement trends, agency guidance and statements, court decisions impacting merger analysis, and industry-specific competitive shifts. This continuous monitoring ensures that strategic advice remains timely, accurate, and relevant in a rapidly evolving regulatory environment.

Strategic Planning Recommendations

Complex reviews demand early preparation within deal timelines to allow for comprehensive data gathering, risk evaluation, strategy development, and specialist engagement. Timing is critical, especially with expanded documentation requirements.

Legal teams should establish consistent approaches to assessments, document handling, analysis, and agency interactions while remaining adaptable to the unique needs of each deal..

Final Thoughts

The ultimate goal is to position clients for successful regulatory reviews while effectively managing the increased complexity and scope of modern merger analysis. Achieving this requires balancing thorough preparation with efficient execution, all while staying attuned to the ever-changing regulatory landscape. Practitioners who can effectively navigate these challenges and deliver practical, actionable guidance to their clients will be best positioned for long-term success.