Mergers & Acquisitions, AI and Antitrust: The New Creative Ways for Big Tech to Enter the AI Market and Avoid HSR Rules

By: Luis Blanquez (Bona Law/The Antitrust Attorney)

Two main pillars of the Biden Administration’s 2023 antitrust policy are an aggressive merger enforcement agenda and a crusade against Big Tech and vertical integration.

Regarding mergers, the Department of Justice (DOJ) and Federal Trade Commission (FTC) have introduced new Merger Guidelines and proposed changes to Hart-Scott-Rodino Act (HSR) notification requirements. In 2022 and 2023, these agencies have challenged more mergers than ever before. In a November 2023 letter to Rep. Tom Tiffany, FTC Chair Lina Khan highlighted that out of the 38 mergers challenged during her tenure, 19 were abandoned, 14 were settled with divestitures, and two are pending final outcomes.

This includes significant acquisitions such as Nvidia/Arm Ltd and Meta/Within. The FTC’s aggressive approach continues unabated, with the DOJ also recently challenging the Live Nation/Ticketmaster merger. Despite the FTC Chair’s confidence and recent challenges by the DOJ, antitrust enforcers have faced difficulties. US courts have pushed back on several extreme challenges and new theories, as seen in the Microsoft/Activision case…

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