Deals & Corporate Governance

Expert Analysis

• Considering Judicial Treatment Of The 2023 Merger Guidelines

  

  Courts have so far primarily cited the 2023 merger guidelines for propositions that do not differ significantly from prior versions of the guidelines, leaving it unclear whether the antitrust agencies will test the guidelines’ more aggressive theories, and how those theories will be treated by federal judges, say attorneys at Covington.

• Bid Protest Spotlight: Documentation, Overrides, Eligibility

  

  Recent decisions by the U.S. Court of Federal Claims and the U.S. Government Accountability Office illustrate the importance of contemporaneous documentation in proposal evaluations, the standards for an agency’s override of a Competition in Contracting Act stay, and the regulatory requirements for small business joint ventures, says Cody Fisher at MoFo.

• Calif. Bill May Shake Up Healthcare Investment Landscape

  

  If signed by the governor, newly passed California legislation would significantly expand the Office of Health Care Affordability's oversight of private equity and hedge fund investments in healthcare companies and management services organizations, and raise several questions about companies' data confidentiality and filing burdens, say attorneys at Ropes & Gray.

• FTC Actions Highlight New Noncompete Enforcement Strategy

  

  Several recent noncompete-related actions from the Federal Trade Commission — including its recent dismissal of cases appealing the vacatur of a Biden-era noncompete ban — reflect the commission's shift toward case-by-case enforcement, while confirming that the agency intends to remain active in policing such agreements, say attorneys at Debevoise.

• A Change In Big Pharma Response To FTC Delisting Warnings

  

  While the effect of Federal Trade Commission notices to pharmaceutical companies about allegedly improper patent listings in the U.S. Food and Drug Administration's Orange Book had been de minimis through the end of last year, July data shows an increase in delistings, say Ratib Ali and Celia Lu at Competition Dynamics.

• Structuring Noncompetes In License And Collaboration Deals

  

  As companies grappling with coming patent cliffs look to mergers and acquisitions to compensate, contracting parties assessing biopharma license and collaboration agreements should prepare to agree on noncompetes that ensure the parties' respective objectives are met and that their incentives are aligned, both under their collaboration and beyond, says Jeff Jay at Freshfields.

• Texas Med Spas Must Prepare For 2 New State Laws

  

  Two new laws in Texas — regulating elective intravenous therapy and reforming healthcare noncompetes — mark a pivotal shift in the regulatory framework for medical spas in the state, which must proactively adapt their operations and contractual practices, says Brad Cook at Munsch Hardt.

• Strategies For Cos. Navigating US-Indian Pharma Partnerships

  

  Recent policy adjustments implemented by the U.S. government present both new opportunities and heightened regulatory scrutiny for the Indian life sciences industry, amplifying the importance of collaboration between the Indian and U.S. pharmaceutical sectors, say Bryant Godfrey at Foley Hoag and Jashaswi Ghosh at Holon Law Partners.

• A Look At Key 5th Circ. White Collar Rulings So Far This Year

  

  In the first half of 2025, the Fifth Circuit has decided numerous cases of particular import to white collar practitioners, which collectively underscore the critical importance of meticulous recordbuilding, procedural compliance and strategic litigation choices at every stage of a case, says Joe Magliolo at Jackson Walker.

• A Look At Trump 2.0 Antitrust Enforcement So Far

  

  The first six months of President Donald Trump's second administration were marked by aggressive antitrust enforcement tempered by traditional structural remedies for mergers, but other unprecedented actions, like the firing of Federal Trade Commission Democrats, will likely stoke heated discussion ahead, says Richard Dagen at Axinn.

• Plan For Increased HSR Info Sharing With Wash. Antitrust Law

  

  Washington's merger notification requirements, effective later this month, combined with the Federal Trade Commission's new Hart-Scott-Rodino Act rules, will result in greater information sharing among state and federal agencies, making it important for merging parties to consider their transaction's potential state antitrust implications early on, say attorneys at McDermott.

• Spinoff Transaction Considerations For Biotech M&A

  

  Amid current market challenges, boards and management teams of biotech companies can consider several strategies for maximizing value should a spinoff opportunity arise, but not without significant advance planning and careful implementation, particularly in cases that might qualify as tax-free, say attorneys at Paul Hastings.

• How Ore. Law Puts New Confines On Corp. Health Ownership

  

  A newly enacted law in Oregon strengthens the state’s restrictions on corporate ownership of healthcare practices, with new limitations on overlapping control, permissible services, restrictive covenants and more making it necessary for practices to review decades-old physician practice arrangements, say attorneys at Ropes & Gray.