Benjamin Sibbett

Kroger and Albertsons must pay legal fees to the state attorneys general who challenged the grocery chains' now-scrapped $24.6 billion merger, an Oregon federal judge ruled Friday, denying the companies' argument that the court's temporary injunction in the case wasn't sufficient for the states to win back costs. U.S. District Judge Adrienne Nelson ruled that the states, along with the Federal Trade Commission, "substantially prevailed" in their claims that the proposed merger violated the Clayton Act, a federal statute barring anticompetitive practices. The law explicitly entitles winning plaintiffs to costs and attorney fees, she noted. "Because the court concludes that this is an action under the Clayton Act and that state plaintiffs substantially prevailed, an award of attorney's fees is mandatory," Judge Nelson wrote. Kroger and Albertsons had argued that the suit didn't qualify as an action under the Clayton Act because the states didn't specifically list a Clayton Act claim. The grocers also asserted that the preliminary injunction didn't satisfy the "substantially prevailed" standard. The court rejected those arguments, agreeing with the states that they "litigated their Clayton Act claim and received their requested relief." The plaintiffs "pleaded the Clayton Act throughout their complaint" despite not listing distinct claims or causes of action, according to Friday's order. "Additionally, there is no other authority under which state plaintiffs could have brought this action," the court ruled. While the FTC brought claims against the grocers under the FTC Act, the states — Arizona, California, Illinois, Maryland, Nevada, New Mexico, Oregon, Wyoming, and the District of Columbia — had argued that they weren't eligible to sue under that statute. Further, defendants themselves admitted in their filings that each state plaintiff was "seeking relief pursuant to the Clayton Act," Judge Nelson noted. "Congress chose to require an award of attorney's fees to a prevailing party in any action under the Clayton Act," she added, "and that choice should be given effect." As for whether the Oregon court's December 2024 temporary injunction blocking the merger was a sufficient victory for states to recoup their costs, Judge Nelson wrote that the question was answered by a 1984 Ninth Circuit opinion in Southwest Marine Inc. v. Campbell Industries, "under which a preliminary injunction is sufficient to establish that state plaintiffs substantially prevailed." While a 2025 U.S. Supreme Court ruling in Lackey v. Stinnie held that only "judicial relief on the merits" — not preliminary injunctions — were eligible for fees, the judge wrote, that standard applied to a separate law, 42 U.S.C. Section 1988. Plaintiff states in the current case, meanwhile, sued under Section 16 of the Clayton Act. Judge Nelson ruled that the Lackey decision left the Ninth Circuit's Southwest Marine precedent "undisturbed." Despite numerous subsequent high court decisions since Southwest Marine, she explained, justices have given "repeated direction to carefully distinguish among the fee-shifting standards created by Congress." In light of those instructions and "the express language of Lackey itself stating that its holding does not apply to statutes like [the Freedom of Information Act], the court concludes that Lackey's interpretation of Section 1988 does not control here." "Because state plaintiffs were awarded some relief by the court, after a substantial hearing on the merits, and because that change is final, they substantially prevailed within the meaning of Section 16" of the Clayton Act, Judge Nelson ruled. In addition to the suit from FTC and the plaintiff states, the merger was also challenged in Washington state court by that state's attorney general. Both courts halted the proposed merger. Judge Nelson issued a preliminary injunction, while the Washington court permanently blocked the deal. The companies subsequently dropped their plans to combine. Counsel for the grocery stores did not immediately respond to requests for comment Friday. Counsel for Oregon also did not immediately respond. The states are represented by their respective attorneys general's offices or departments of justice. Albertsons is represented by David H. Angeli and Peter D. Hawkes of Angeli & Calfo LLC, Enu A. Mainigi, Jonathan B. Pitt, William Ashworth, Beth A. Stewart, A. Joshua Podoll, Thomas W. Ryan and Tyler Infinger of Williams & Connolly LLP, and James A. Fishkin, Michael Cowie, Elena Kamenir, Howard M. Ullman, Ross Ufberg and Yosef Weitzman of Dechert LLP. Kroger is represented by B. John Casey, Rachel Lee and Jacob Goldberg of Stoel Rives LLP, Matthew M. Wolf, Sonia K. Pfaffenroth, Joshua M. Davis, Jason C. Ewart, Michael E. Kientzle, Matthew M. Shultz, David B. Bergman, Michael L. Walden, Yasmine Y. Harik, Barbara H. Wootton, Christian Schultz, David Emanuelson, Mei-Wah Lee, Wilson DeLoss Mudge, John A. Holler, Brian K. Condon and Jeremy T. Kamras of Arnold & Porter Kaye Scholer LLP and Mark A. Perry, Luke Sullivan, Luna N. Barrington, Sarah M. Sternlieb, Bambo Obaro, Thomas B. Fiascone and Rebecca Sivitz of Weil Gotshal & Manges LLP. The case is Federal Trade Commission et al. v. Kroger Co. et al., case number 3:24-cv-00347, in the U.S. District Court for the District of Oregon.

Feb 27

4 min

Fried, Frank, Harris, Shriver & Jacobson has added two partners in its mergers and acquisitions and private equity practice, as the firm seeks to further bolster its trans-Atlantic transactional offerings. Kirkland & Ellis’ Rhett McPhie joined Fried Frank in London, and Morgan, Lewis & Bockius’ Nathan Pusey joined the firm in New York on Tuesday. Both were partners at their former firms and are the latest in a series of lateral additions Fried Frank has made to its M&A team in recent months. Steven Epstein, Fried Frank’s managing partner and co-head of the M&A and PE practice group, said in an interview that growing that practice area has been a priority for the firm. Fried Frank works on a financial year that ends February 27, last Friday, and Epstein said that the M&A group's performance in 2025 was some of the best it has ever seen. Epstein did not speak to specific revenue figures for the firm, but said that in 2025, Fried Frank saw close to $5 trillion in deal volume in the M&A space at large, a number which he said would make it the second strongest year in the M&A space behind 2021, which just surpassed $5 trillion in deal volume. According to Epstein, the market had more than 70 deals in 2025 valued at $10 billion or more, and he expects to see continued strength in the market despite the ongoing uncertainties in the economic and political landscape. “A lot of the uncertainties .. remain for boardrooms and C-suites, like affordability, inflation, interest rates, geopolitical risks, tariffs, onshoring production, or onshoring manufacturing,” Epstein said. “They existed in 2024, 2025, and they persist in 2026. Having said that, I think a lot of C-suites and boardrooms have learned how to price those risks into their transactions. And what you're seeing is very large transactions getting done.” Much of the firm's client work is happening across borders between the United Kingdom and the United States, Epstein said, noting that this is supported by Fried Frank’s years-long project to expand its asset management and M&A and private equity offerings into London. According to Epstein, the growth of Fried Frank’s offerings in London has led to an organic client growth in the area that overlaps with the firm’s clients in America, which then led to trans-Atlantic deals. Lateral partner additions like McPhie and Pusey help meet increased demand in the M&A and private equity space, Epstein said. Including those two new laterals, Epstein said the practice now has 26 partners and just over 100 total lawyers across the firm. A representative for Morgan Lewis said in an email to Law.com that the firm wishes Pusey well. Representatives for Kirkland did not immediately respond to requests for comment on McPhie’s departure. The trans-Atlantic growth effort has involved several lateral hires, including McPhie and Pusey. At the beginning of February, Fried Frank also added Pillsbury Winthrop Shaw Pittman’s mergers and acquisitions and private equity practice leader Stephen Amdur in New York. In Washington, D.C., the firm added antitrust partner Shawn Johnson from Crowell & Moring in January. The firm also took another mergers and acquisitions partner from Kirkland, Saif Shah Mohammed, for its D.C. office in December, making McPhie the second Kirkland mergers and acquisitions partner to move to Fried Frank in the last six months. While the firm has been adding lateral partners to its mergers and acquisitions and private equity practice, it has also lost partners in that same practice over the past few months. In September, the firm lost two mergers and acquisitions partners when Andrea Gede-Lange moved to Clifford Chance and Thomas Lee went to Latham & Watkins, both in New York. Epstein said that the firm has made and added more partners to the mergers and acquisitions and private equity team than it has lost. He said competition for strong talent remains robust, and the firm is itself in talks with more potential laterals for the mergers and acquisitions and private equity practice, as well as other practices like antitrust, though he declined to provide specific names.

Mar 3

3 min

Kroger and Albertsons must pay legal fees to the state attorneys general who challenged the grocery chains' now-scrapped $24.6 billion merger, an Oregon federal judge ruled Friday, denying the companies' argument that the court's temporary injunction in the case wasn't sufficient for the states to win back costs. U.S. District Judge Adrienne Nelson ruled that the states, along with the Federal Trade Commission, "substantially prevailed" in their claims that the proposed merger violated the Clayton Act, a federal statute barring anticompetitive practices. The law explicitly entitles winning plaintiffs to costs and attorney fees, she noted. "Because the court concludes that this is an action under the Clayton Act and that state plaintiffs substantially prevailed, an award of attorney's fees is mandatory," Judge Nelson wrote. Kroger and Albertsons had argued that the suit didn't qualify as an action under the Clayton Act because the states didn't specifically list a Clayton Act claim. The grocers also asserted that the preliminary injunction didn't satisfy the "substantially prevailed" standard. The court rejected those arguments, agreeing with the states that they "litigated their Clayton Act claim and received their requested relief." The plaintiffs "pleaded the Clayton Act throughout their complaint" despite not listing distinct claims or causes of action, according to Friday's order. "Additionally, there is no other authority under which state plaintiffs could have brought this action," the court ruled. While the FTC brought claims against the grocers under the FTC Act, the states — Arizona, California, Illinois, Maryland, Nevada, New Mexico, Oregon, Wyoming, and the District of Columbia — had argued that they weren't eligible to sue under that statute. Further, defendants themselves admitted in their filings that each state plaintiff was "seeking relief pursuant to the Clayton Act," Judge Nelson noted. "Congress chose to require an award of attorney's fees to a prevailing party in any action under the Clayton Act," she added, "and that choice should be given effect." As for whether the Oregon court's December 2024 temporary injunction blocking the merger was a sufficient victory for states to recoup their costs, Judge Nelson wrote that the question was answered by a 1984 Ninth Circuit opinion in Southwest Marine Inc. v. Campbell Industries, "under which a preliminary injunction is sufficient to establish that state plaintiffs substantially prevailed." While a 2025 U.S. Supreme Court ruling in Lackey v. Stinnie held that only "judicial relief on the merits" — not preliminary injunctions — were eligible for fees, the judge wrote, that standard applied to a separate law, 42 U.S.C. Section 1988. Plaintiff states in the current case, meanwhile, sued under Section 16 of the Clayton Act. Judge Nelson ruled that the Lackey decision left the Ninth Circuit's Southwest Marine precedent "undisturbed." Despite numerous subsequent high court decisions since Southwest Marine, she explained, justices have given "repeated direction to carefully distinguish among the fee-shifting standards created by Congress." In light of those instructions and "the express language of Lackey itself stating that its holding does not apply to statutes like [the Freedom of Information Act], the court concludes that Lackey's interpretation of Section 1988 does not control here." "Because state plaintiffs were awarded some relief by the court, after a substantial hearing on the merits, and because that change is final, they substantially prevailed within the meaning of Section 16" of the Clayton Act, Judge Nelson ruled. In addition to the suit from FTC and the plaintiff states, the merger was also challenged in Washington state court by that state's attorney general. Both courts halted the proposed merger. Judge Nelson issued a preliminary injunction, while the Washington court permanently blocked the deal. The companies subsequently dropped their plans to combine. Counsel for the grocery stores did not immediately respond to requests for comment Friday. Counsel for Oregon also did not immediately respond. The states are represented by their respective attorneys general's offices or departments of justice. Albertsons is represented by David H. Angeli and Peter D. Hawkes of Angeli & Calfo LLC, Enu A. Mainigi, Jonathan B. Pitt, William Ashworth, Beth A. Stewart, A. Joshua Podoll, Thomas W. Ryan and Tyler Infinger of Williams & Connolly LLP, and James A. Fishkin, Michael Cowie, Elena Kamenir, Howard M. Ullman, Ross Ufberg and Yosef Weitzman of Dechert LLP. Kroger is represented by B. John Casey, Rachel Lee and Jacob Goldberg of Stoel Rives LLP, Matthew M. Wolf, Sonia K. Pfaffenroth, Joshua M. Davis, Jason C. Ewart, Michael E. Kientzle, Matthew M. Shultz, David B. Bergman, Michael L. Walden, Yasmine Y. Harik, Barbara H. Wootton, Christian Schultz, David Emanuelson, Mei-Wah Lee, Wilson DeLoss Mudge, John A. Holler, Brian K. Condon and Jeremy T. Kamras of Arnold & Porter Kaye Scholer LLP and Mark A. Perry, Luke Sullivan, Luna N. Barrington, Sarah M. Sternlieb, Bambo Obaro, Thomas B. Fiascone and Rebecca Sivitz of Weil Gotshal & Manges LLP. The case is Federal Trade Commission et al. v. Kroger Co. et al., case number 3:24-cv-00347, in the U.S. District Court for the District of Oregon.

Feb 27

4 min

New York – Sidley is pleased to announce that Juan A. Arteaga, a former Deputy Assistant Attorney General (DAAG) in the U.S. Department of Justice (DOJ) Antitrust Division, has joined the firm’s office in New York as a partner in the Antitrust and Competition practice. Mr. Arteaga joins from Crowell & Moring, where he was chair of the New York Antitrust practice. Mr. Arteaga is a Chambers-ranked antitrust litigator and first-chair trial lawyer who advises companies, boards of directors, and executives in high-stakes civil and criminal antitrust investigations and litigation in federal district and appellate courts across the United States. As a former DAAG in the DOJ Antitrust Division, he brings extensive experience guiding clients through a broad range of civil (both merger and conduct) and criminal antitrust investigations conducted by the DOJ, Federal Trade Commission, and State Attorneys General. Mr. Arteaga has successfully defended leading corporations, executives, and directors in numerous “bet-the-company” litigation and trials, including government enforcement actions, multidistrict litigation, and class actions. As a DOJ DAAG, he oversaw numerous complex merger and conduct investigations across a wide range of industries, including technology, financial services, healthcare, defense and aerospace, transportation, consumer products, higher education, and telecommunications. During his DOJ tenure, he played a leading role in multiple merger challenges that resulted in transactions being abandoned or blocked following trial. “Juan is a market-leading antitrust practitioner whose senior DOJ experience further strengthens Sidley’s ability to advise clients on their most complex and sensitive matters,” said Yvette Ostolaza, Chair of Sidley’s Management Committee. “His judgment, credibility with enforcers and regulators, and depth across investigations and merger reviews make him integral to the continued growth of our Antitrust and Competition practice.” “Juan’s arrival further strengthens Sidley’s global antitrust platform, particularly in New York, where clients increasingly face complex enforcement risk and follow-on litigation,” said Nancy Chung, managing partner of Sidley’s New York office, head of the Litigation group in New York, and a member of the firm’s Management Committee and Executive Committee. “He brings a combination of government insight, trial experience, and practical business judgment that our clients value highly.” In addition to being a leading antitrust practitioner, Mr. Arteaga has extensive experience representing corporations and financial institutions in complex commercial litigation, including representing clients in securities fraud actions, shareholder derivative actions, and contract disputes. Mr. Arteaga’s arrival follows the addition of several partners to Sidley’s New York office in 2026, including Ji Hye You and Leah Edelboim in Global Finance, and Cliff Cone, Michael Sabin, and Dan Drabkin in Investment Funds. In 2025, Sidley added multiple partners to the office, including Mary Marks in Antitrust and Competition; Matthew Podolsky in White Collar Defense and Investigations; Ian McGinley in Securities Enforcement and Regulatory; David Grubman, Adam Cromie, George Hunter, and Demetrius Warrick in M&A; Andrew Colosimo, Patrick Greeley, Shant Manoukian, Andrew Fadale, and David Perkins in Private Equity; Chris Jackson in Global Finance; Kristin Lee in Banking and Financial Services; Amy Rubin in Employee Benefits and Executive Compensation; and Bonnie Neuman, Nicholas Brandfon, and Melissa Hinkle in Real Estate. Sidley’s Antitrust practice represents public and private corporations, funds, individuals, and associations in cases involving claims of price fixing, market allocation, actual or attempted monopolization, price discrimination, resale price maintenance, refusals to deal, information exchanges, improper dealer terminations, and other alleged antitrust violations. We have also litigated private and public challenges to proposed mergers and acquisitions. Sidley is “Built to Win®” at each stage of the litigation process and counts more than 750 litigators worldwide. With true geographic reach, the firm can field winning litigation teams in virtually any forum where its clients find themselves facing a dispute. Sidley is an elite global law firm. With approximately 2,300 lawyers and 160 years of experience, we have established a reputation for deploying innovative legal strategies to achieve powerful results for our clients in complex transactional, restructuring, crisis management, investigation, regulatory, and litigation matters. Our perspective and reach are truly global, supported by 21 offices strategically situated in key commercial, regulatory, and financial centers across the world. Our lawyers and business professionals, fluent in more than 75 languages, possess the cultural awareness and cross-border legal acumen needed to bring clarity to a dynamic business landscape. Attorney Advertising—Sidley Austin LLP is a global law firm. Our addresses and contact information can be found at www.sidley.com/en/locations/offices. Sidley and Sidley Austin refer to Sidley Austin LLP and affiliated partnerships as explained at www.sidley.com/disclaimer.

Feb 18

3 min

A flurry of megadeals in transportation, technology and infrastructure has propelled global mergers and acquisitions to their strongest showing since 2021, even as the number of transactions languishes at levels not seen since the financial crisis. According to data provider Mergermarket's latest M&A Highlights report, worldwide deal values surged 32% year-on-year to $3.4 trillion in the first nine months of 2025. This was powered by 49 transactions worth more than $10 billion each — the highest number Mergermarket has on record. "While certain headwinds persist, we anticipate that high-profile deals will continue to set the tone for the remainder of the year and into 2026," Allison Schneirov, a global head of Skadden Arps Slate Meagher & Flom LLP's transactions practices, told Law360. The firm is seeing "sustained optimism from buyers, which we believe highlights their readiness to engage in meaningful transactions despite any uncertainty," she said. Yet deal count remains close to all-time lows, reflecting a bifurcated market in which large-cap corporates dominate, while small and mid-sized companies shy away from pursuing deals amid volatile conditions. Data provided by Dealogic puts the precise deal count into perspective, showing just 29,879 transactions through September — the lowest year-to-date figure in a data set stretching back to 2015. The Dealogic data also shows that the roughly $3.4 billion in global values was the highest figure during the same period, with the exception of the record-breaking performance in 2021 that eclipsed $4.5 trillion. "It feels like we've been on a local train that starts and stops in a lot of places," said Mahvesh Qureshi, head of corporate and finance at Hogan Lovells for the Americas, in the report. "My cautious optimism for 4Q25 is that we are now on a bullet train that will take us rapidly onwards." Global Trends: Value Up, Volume Down The blockbuster transactions of 2025 provided a boost to overall values. Union Pacific's takeover of Norfolk Southern, which valued the latter company around $85 billion, marked the largest merger in more than three years, while Electronic Arts' $55 billion buyout by Saudi Arabia's Public Investment Fund, Silver Lake and Affinity Partners set a new record for leveraged buyouts. Other landmark moves included Charter Communications' $34.5 billion acquisition of Cox Communications and a series of multibillion-dollar AI investments by Google, Meta and Anthropic. Technology led the pack: Tech M&A jumped 58% to $809 billion, representing nearly a quarter of total global volume, the report said. !function(){"use strict";window.addEventListener("message",function(a){if(void 0!==a.data["datawrapper-height"]){var e=document.querySelectorAll("iframe");for(var t in a.data["datawrapper-height"])for(var r,i=0;r=e[i];i++)if(r.contentWindow===a.source){var d=a.data["datawrapper-height"][t]+"px";r.style.height=d}}})}(); At the same time, corporate streamlining and carveouts surged. Divestitures and spinoffs totaled about $916 billion, their highest level since 2021. Executives have increasingly used breakups to unlock shareholder value, as seen in Holcim's $33.7 billion spinoff of its North American unit, Amrize. But beneath the headline figures, the mid-market remains subdued. The aggregate value of transactions over $10 billion surged 90% year-over-year to $986 billion. But deals between $1 billion and $2 billion rose a more modest 18%, while those smaller than $1 billion edged up just 2%. Many megadeals were planned over long periods and their strategic nature makes them less sensitive to macroeconomic volatility, said Benjamin Sibbett, head of Clifford Chance's Americas corporate practice, in the report. "You don't just decide to merge Union Pacific and Norfolk Southern overnight," Sibbett said. North America: A Bifurcated Boom North America was at the heart of the dealmaking surge. The region recorded $1.77 trillion in M&A value, up 35% year-on-year, making it the second-strongest nine-month stretch on record after the 2021 boom, the report said. Yet, as with the global performance, deal count fell — 6% to just 8,987 transactions — for the lowest tally since 2009. The divergence underscores the reliance on select megadeals to drive overall activity. The 10 largest transactions accounted for 22% of North American volume, with four sealed in the third quarter alone. Alongside Norfolk Southern and Electronic Arts, highlights included OpenAI's $40 billion funding round in March. "AI, digital infrastructure and technology-driven transactions are transforming the M&A landscape, introducing new complexities and opportunities for both buyers and sellers," said Schneirov from Skadden. "Many companies are acquiring AI talent, not just technology," she said. "Due diligence also has to go beyond traditional IP and buyers need to focus on evolving regulation so they can ensure compliance as the law in this area continues to develop." Policy developments shaped the region's flows as well. "After a turbulent start to the year — marked by policy disruptions including President Trump's tariff and Liberation Day announcements — optimism rebounded in the summer," the report said. Domestic M&A climbed to $1.3 trillion, while inbound investment rose steadily to $283 billion. The sector mix tells a similar story. Technology deals alone comprised 30% of North American M&A at $529 billion, with artificial intelligence funding rounds and acquisitions setting the tone. Utilities and energy also rose sharply, driven by the urgent need to power data centers supporting AI workloads. Constellation Energy's $26.6 billion acquisition of Calpine and Baker Hughes' $13.8 billion purchase of Chart Industries stood out among energy deals. Private equity also staged a comeback, albeit selectively. Buyout volume in North America jumped 51% to $376 billion, led by the EA transaction, Air Lease's $28.2 billion buyout, and Sycamore Partners' $24 billion acquisition of Walgreens Boots Alliance. Exit activity followed suit, rising 52% to $253 billion. New tax provisions in the U.S. are likely to foster more private equity dealmaking, said Julia Taylor, a partner at Saul Ewing, in the report. Specifically, she called attention to the reinstatement of business interest expense deductions based on the higher cash-flow metric of earnings before interest, taxes, depreciation and amortization, or EBITDA — rather than just EBIT — which will lower the cost of financing and improve cash flow for acquisitions financed with debt. "We expect this to drive M&A activity, especially for buyers that are reliant on debt to fund acquisitions — so private equity shops and other financial buyers," Taylor said. Outlook: Momentum Heading Into Q4 Despite headwinds from tariffs, uneven economic performance and policy uncertainty, momentum picked up markedly in the summer months. September posted $277.5 billion in deal value, the best monthly total since April 2021, the report said. Looking ahead, the report flags several high-value sales in the pipeline, including Occidental Petroleum's planned divestment of OxyChem, which Warren Buffett's Berkshire Hathaway agreed to purchase for $9.7 billion on Thursday, and Madison Industries' potential sale of its Filtration Group. With auctions heating up and financing conditions improving after the Federal Reserve's September rate cut, dealmakers are working to close transactions before year-end. "People are feeling cautiously optimistic that the market will continue to become more active," Clifford Chance partner Benjamin Sibbett noted in the report. To navigate headwinds, sponsors and corporates are turning to creative deal structures like joint ventures with buyout options, earnouts, preferred equity, minority stakes, GP stakes transactions, secondary transactions and continuation vehicles, said Sibbett. Still, the broader picture remains one of concentration at the top. For all the buzz around megadeals, the middle market — long the engine of steady M&A activity — has yet to re-engage in a meaningful way. Whether that changes in 2026 may depend on a clearer macroeconomic trajectory and renewed confidence among smaller corporates. For now, 2025 looks to be a year defined by larger deals that taking on even more prominence in the global corporate landscape, underscoring the increasing dominance of deep-pocketed strategics and financial sponsors. As technology, industrials, energy and infrastructure continue to be particularly active in part by ongoing investment in AI and "digital transformation," Schneirov of Skadden said there are "no signs of slowing down." But she added: "We have stopped trying to predict the M&A cycle — every time we do, it proves us wrong. M&A will always be part of the capital allocation toolkit, so we try and focus on helping our clients navigate whatever conditions exist."

Oct 3

6 min