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Hostile Or Not, Every Merger Brings A Battle
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. However, with renewed momentum comes renewed risk: legal, reputational, operational, and cyber. Each of these risk areas can derail a transaction before it closes or haunt a company long after the ink has dried.
On one hand, companies may feel encouraged to revisit bold mergers or complex acquisitions, knowing that there is room for dialogue with regulators. On the other, that same openness could invite more aggressive plays, including hostile takeovers, which demand heightened readiness across legal, compliance, and cybersecurity teams. The ability to close a deal now depends not only on capital, but on the strength of pre-transaction intelligence, the protection of sensitive information, and the anticipation of reputational and regulatory friction.
Both the Department of Justice and the Federal Trade Commission have recently signaled a renewed willingness to allow mergers to proceed, so long as the parties agree to targeted divestitures or structural remedies. Unlike in previous times where they leaned heavily on deterrence and litigation, the current enforcement strategy appears more surgical: a shift toward case-by-case resolution rather than blanket resistance. That shift brings welcome clarity to the dealmaking environment and may begin to thaw the caution that has gripped M&A markets in recent years.
But a more permissive landscape doesn’t come without its own hazards. A surge in deal volume means higher exposure for acquirers, targets, and everyone advising them. Operational, reputational, and regulatory risks must be assessed with greater urgency with the margin for error being thinner than ever. Success won’t hinge on speed alone; it will depend on the depth of the intelligence that precedes the deal.
Whether representing a buyer or a company defending itself from an unsolicited offer, the Guidepost team has seen firsthand how the most effective M&A strategies begin well before the term sheet. The best strategies are built on early intelligence, discreet inquiry, and strategic foresight. This goes much further than traditional due diligence—it’s about asking the uncomfortable questions.
- Why does the target’s labor record look pristine—perhaps suspiciously so?
- Are there compliance exposures buried in regional operations or third-party relationships that don’t surface on a balance sheet?
- What sensitive information could become a weapon in the hands of a competitor, regulator, or activist investor?
- And perhaps most critically, who benefits from the deal, and who may be trying to derail it from the shadows?
In recent matters, we’ve helped clients establish security protocols over negotiations, deploy cyber safeguards during delicate dealmaking, and train teams to prevent leaks and accidental disclosures. We’ve conducted deep dives into both acquirers and targets to identify governance gaps, compliance blind spots, and operational vulnerabilities. Our work has included forensic accounting reviews, reputational investigations, and background checks on senior leadership. In certain cases, we’ve traced the origins of suspicious opposition campaigns, uncovering efforts by competitors or aligned stakeholders to apply public or regulatory pressure.
Hostile takeovers bring these challenges into sharper focus. Though it’s often assumed the target is on the defensive, a prepared and strategic response can extract significant concessions, or make the deal unattractive altogether. In our experience, defending the target brings some of the most demanding, but also the most rewarding, work: safeguarding sensitive data, managing the narrative, and staying a step ahead of the acquirer’s playbook.
For financial institutions and highly visible companies, the risks are even more layered. As one client once remarked, “If you’ve built a successful financial product and no one’s trying to copy it, you should be worried.” Attention breeds scrutiny. And scrutiny, in today’s environment, can escalate quickly.
This isn’t a call to rush into deals. It’s a call to prepare. The merger landscape is evolving—so are the tactics, the threats, and the opportunities. The companies that will thrive are those who treat risk as an asset, not an afterthought, and who understand that a successful transaction is shaped not just at the negotiating table, but in every decision made long before it.
Bart M Schwartz
Co-Founder and Chairman
Described by The New York Times as the person “often sought out in…thorny situations,” Bart M. Schwartz is a founder and the chairman of Guidepost Solutions, where he provides compliance, ethics, and integrity monitoring and investigative services. He is a former Chief of the Criminal Division of the United States Attorney’s Office for the Southern District of New York. For more than 30 years, Mr. Schwartz has managed sensitive and complex matters for a wide array of clients including government agencies, international corporations, and not-for-profits.
Yohir Akerman
President, LATAM Region
Yohir Akerman is an experienced investigator uncovering issues regarding fraud and corruption for a variety of public and private sector clients. Throughout his career, he successfully completed numerous complex investigations and asset searches and provided litigation support for clients. He also has broad experience in-field investigations in Florida and Latin America.
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