Iger’s M&A Wiggle Room

The playbook for how to effectively challenge Lina Khan’s regulatory efforts is now out in the open.
The playbook for how to effectively challenge Lina Khan’s regulatory efforts is now out in the open. Photo: Chip Somodevilla/Getty Images
Eriq Gardner
July 17, 2023

It’s somewhat ironic that Lina Khan, the brilliant 34-year-old progressive antitrust expert and presumed corporate dragon slayer, would end up presiding over one of the most aggressive, adventuresome periods of corporate consolidation. That’s not entirely her fault, of course, despite the taunting of Republicans during a prickly oversight hearing on Thursday. But there’s no doubt that her reign as F.T.C. chair has coincided with a new M&A playbook that corporate lawyers are using to outwit regulators.

The centerpiece of this evolving strategy—seen most recently in mergers like Illumina/Grail, UnitedHealth/Change Healthcare, and Assa Abloy/Spectrum Brands—is known as “litigating the fix.” In short, the move is for the acquiring company to proactively address any possible antitrust concerns by proposing divestitures, for example, or by committing to side deals that would preserve competition. Voila, now the burden is on the regulatory agency, not the company, to justify why those concessions aren’t sufficient.