Bart M. Schwartz

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.

It is safe to assume that the United States Attorneys’ Offices Voluntary Self-Disclosure Policy announced on March 2, 2023 is intended to decrease wrongdoing and impose rehabilitation and recovery for victims. But announcing voluntary disclosure is only half of the equation. The other half is vigorous law enforcement. Simply put, companies must be made afraid of being caught.