Bart M. Schwartz

How can you undertake the same conduct and turn a win into a loss, and a loss into a win? It happens every day. A company secures injunctive relief against a competitor or a bad actor. A court issues a consent decree or a preliminary injunction that restricts the other party's conduct. On paper, the matter is resolved. In practice, it is only beginning.

The merger landscape in the United States is shifting once again. After a period marked by stricter antitrust enforcement and skepticism toward merger transactions, recent developments suggest a renewed openness to structural remedies, such as divestitures, to resolve competitive concerns. This evolution in enforcement strategy may signal not only greater regulatory flexibility but also a potential resurgence in corporate dealmaking, including, in some cases, hostile takeovers.

Understandably, a fair amount of confusion exists among regulators, practitioners and the general public about monitors and their roles. For years, federal and state governments, regulatory agencies and quasi-governmental organisations have used independent, private individuals to assist in monitoring remediation efforts at entities (e.g., corporations, labour unions and non-profit organisations) found to have engaged in some form of misconduct.