Claudia Higgins Discusses Current Antitrust Regulatory Environment in Bloomberg BRIEF

January 23, 2014

Bloomberg BRIEF: Mergers interviewed Kaye Scholer Antirust Partner Claudia Higgins, formerly the Assistant Director for Regional Litigation at the Federal Trade Commission (FTC), on the current antitrust regulatory environment and how it may benefit mergers moving forward.

According to Higgins, “Both the agencies have very skilled and competent people heading up their antitrust operations, Bill Baer at the Department of Justice and Deborah Feinstein at the FTC, and I see them both as being quite enforcement-minded. At the same time, they both have been on the other side of the table defending companies. They both know and recognize that there are appropriate reasons for a lot of transactions that may on their face look problematic.” She adds, “On balance I think it’s an aggressive enforcement attitude but one that will be tempered by practical considerations the defense bar can bring to them.”

Because of their practicality, Higgins believes that both Baer and Feinstein are willing to reach negotiated settlements on deals. When asked if settlements were becoming more common in order to avoid regulators’ second requests for information on mergers, Higgins responded, “Frankly, I know of only one instance where a settlement was reached without a second request, [which] was the Fougera [Pharmaceuticals Inc.] transaction, a [$1.5 billion] acquisition by our client Novartis [AG in 2012]. It’s very rare to be able to negotiate a settlement within that timeframe.”

Despite this, Higgins continues, “You can always have an impact on the breadth of the second request if you fully engage with an agency and get them to understand the product markets.”

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