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In a statement prompted by an abandoned Ohio hospital merger, Federal Trade Commission Chairman Andrew Ferguson provided the most granular guidance to date on the agency's evaluation of the 'failing firm' defense. The chairman’s statement emphasizes the critical importance of a target company conducting a robust and comprehensive 'shop process' before agreeing to be acquired by a direct competitor. For sophisticated counsel and clients, this guidance clarifies the high bar for successfully asserting that a financially distressed company had no other viable options. Failure to conduct and document an adequate search for alternative buyers could unwind a deal, force a costly mid-review sale process, or lead to a full-blown antitrust challenge, jeopardizing deal certainty. The chairman detailed five factors the FTC will now scrutinize: the breadth of buyer solicitation, the time allowed for evaluation, equal access to diligence materials, the seller's good-faith engagement, and appropriate consideration of offers with fewer competitive concerns. Parties contemplating a transaction that

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The Federal Trade Commission (FTC) gave final approval to a consent order resolving antitrust concerns in Ascension Health Alliance’s $3.9 billion acquisition of AmSurg. The order requires Ascension to divest seven AmSurg ambulatory surgery centers across five metropolitan areas where the agency found the deal would substantially reduce competition for specific outpatient surgical services, including gastroenterology, ophthalmology, and orthopedics.

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An analysis of federal data indicates that extended 'Second Request' antitrust merger reviews are concluding more quickly in 2026, a welcome development for dealmakers. According to a report from Akin Gump, the average review time for investigations resulting in a published agency outcome fell below 10 months in the first half of the year, down from historical highs of over 12 months in 2025. Investigations that closed without a public statement were even faster, averaging around eight months. For sophisticated counsel and their clients, this trend is a significant factor in deal planning. Protracted reviews can jeopardize transactions by increasing costs and uncertainty. The reported shortening of timelines, linked to a greater agency willingness to accept settlements, may provide more predictability and reduce regulatory friction for strategic M&A. Practitioners should continue to track this data to see if the trend holds and adjust their strategies for negotiating with enforcement agencies accordingly, particularly regarding potential remedies.

The FTC secured a $12 million settlement with Edwards Lifesciences and Genesis MedTech over a 2024 transaction the companies structured to evade Hart-Scott-Rodino (HSR) Act premerger filing requirements. The enforcement action signals the FTC is prioritizing aggressive scrutiny of deal structures designed to circumvent HSR thresholds, even when parties argue transactions fall below mandatory reporting levels. In-house counsel should audit recent and pending M&A deal structuring to confirm all HSR filing obligations are satisfied, and retain detailed documentation of any threshold analysis to defend against potential enforcement claims.

The FTC reached a $12 million combined settlement with Edwards Lifesciences and Genesis MedTech after determining the parties structured a 2022 asset purchase to avoid triggering Hart-Scott-Rodino Act pre-merger notification requirements. The agreement included terms that delayed transfer of operational control and voting rights until after the statutory HSR waiting period would have lapsed, allowing the transaction to close without a required filing. The settlement signals the FTC’s heightened focus on enforcing HSR compliance for all transaction structures, including those designed to circumvent filing thresholds. In-house counsel should review pending and completed deals for potential HSR gaps, and ensure future transaction structuring does not include provisions intended to avoid pre-merger notification obligations.