Nelson Mullins partner Andrew Lee was interviewed by MLex for a “Year in Review” article on US antitrust merger enforcement published on Dec. 31. 2024. Lee, a former FTC attorney, commented on the revived validity of the 30% structural presumption of illegality under the new Merger Guidelines, which was affirmed by the South District of New York in the fall. Lee was quoted in the following excerpt:

According to Andrew Lee, a former FTC attorney who is currently a partner with Nelson Mullins Riley & Scarborough, recent decisions endorsing the validity of the 30-percent standard are worrying for dealmakers.

“Merging parties will be very, very concerned in the future because many strategic mergers in a wide range of consolidating industries now — depending on how their submarkets are defined — will easily cross over the 30% threshold,” Lee said. “It could effectively bar, I would say for strategic mergers and acquisitions out there, well over half of the mergers in many concentrated industries, and these could be deemed ‘presumptively illegal’ under the court’s reasoning. And that notion will be very challenging for many companies to prepare for.”

However, a key caveat is that both the IQVIA and Tapestry cases involved alleged market shares well above 30 percent. Therefore, the lower limit for what level of market concentration a judge will deem anticompetitive hasn’t been tested.

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