Think Again—Allocating Antitrust Risk in a Climate of Protracted Investigations

By Brian Burke and John Fedele –

This article addresses the concept of “antitrust risk” before highlighting recent, high-profile transactions that have been subjected to antitrust investigations by the U.S. Antitrust Agencies and discussing several factors that contribute to the lengthening of antitrust investigations. In addition, it examines provisions that parties have used to allocate risk, and considers whether different approaches to allocating risk may be warranted in light of today’s review periods.