Despite growing interest in vertical mergers, there has been much uncertainty regarding how the antitrust agencies are likely to evaluate vertical mergers since only a single vertical merger, AT&T-Time Warner, has been litigated in the last four decades. To provide clarity, the US Department of Justice and the Federal Trade Commission jointly published draft vertical merger guidelines in January 2020. To understand how these general guidelines are likely to be operationalized, it is useful to consider how the antitrust agencies have evaluated recent vertical mergers. One notable example is CVS Health Corp.’s $70 billion acquisition of Aetna Inc.
In this Law360 article, Steven Tenn, Omar Farooque, and co-author Rani Habash share takeaways from working on behalf of CVS Health and Aetna during the merger review process to provide insight into how the antitrust agencies are likely to assess vertical issues in future proposed transactions.