Bailey Glasser Lawyers Author Chambers & Partners Global Corporate M&A Practice Guide
Bailey Glasser partners Nicholas S. Johnson, Jonathan S. Deem, Jennifer S. Fahey, and lawyer Japera A. Parker have authored an article appearing in the Chambers and Partners 2026 Corporate M&A Global Practice Guide: Trends and Developments, USA – Washington, D.C.: “Structuring M&A Deals Around Regulatory Uncertainty and Delay in Washington, DC: A Practical Legal Guide.”
In this article, the authors examine ways that the regulatory environment facing deal makers today is structurally more complex than it was even a decade ago, caused most recently in part due to changes triggered by federal agencies in Washington, D.C. As set forth in the introduction:
The United States, the Federal Trade Commission (FTC) and Department of Justice Antitrust Division have pursued increasingly aggressive merger enforcement strategies. The Committee on Foreign Investment in the United States (CFIUS) has expanded its jurisdictional reach following the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA). The European Commission continues to refine its framework under the EU Merger Regulation, including its new tools under the Foreign Subsidies Regulation. Sector-specific regulators – from the Federal Communications Commission to the Federal Energy Regulatory Commission to banking supervisors – layer additional review timelines and substantive requirements atop general competition review. Meanwhile, multi-jurisdictional deals increasingly face parallel reviews across dozens of antitrust regimes worldwide, each with its own substantive standards, procedural timelines and political dynamics.
Against this backdrop, sophisticated M&A counsel must approach deal structuring not merely as a legal exercise in documentation, but as a strategic exercise in risk allocation. This chapter of the guide explores the principal tools and techniques available to deal lawyers navigating regulatory uncertainty and delay, including:
- the design of regulatory conditions and outside dates;
- reverse termination fees and specific performance provisions;
- hell-or-high-water commitments;
- interim operating covenants;
- deal structure modifications to reduce regulatory exposure; and
- the emerging use of regulatory escrows and deferred closing mechanisms.
Nicholas Johnson is Bailey Glasser's Practice Area Leader of the firm's national and award-winning Corporate, Commercial and Environmental Litigation, Bankruptcy & Business Reorganization, and Criminal Defense & Internal Investigations Practice Areas. Jonathan Deem is Bailey Glasser's Corporate Practice Group Leader where he manages mergers and acquisitions, commercial real estate, private equity, corporate finance, entrepreneurial, and energy and natural resources transactions. Jennifer Fahey is a partner in the Corporate Practice Group where she helps clients navigate complex commercial deals, including in the energy sector. Lawyer Japera A. Parker's nationwide practice focuses on a range of complex business transactions including serving as outside counsel to early-stage companies, working closely with founding teams to guide them through initial company formation considerations, day-to-day business and scaling matters, corporate governance best practices, securities laws, and financings.
Mr. Johnson, Mr. Deem, and Ms. Fahey are all ranked by Chambers & Partners.
Chambers Global Practice Guides provide in-house counsel with expert legal commentary on the main practice areas in key jurisdictions around the world, focusing on practical legal issues affecting business and enable the reader to compare legislation and procedure across a range of key jurisdictions. For every guide, Chambers selects Contributing Editors who are ranked in the relevant Chambers Guides as the best in their field. The individual contributors who write the "Law and Practice" and "Trends & Developments" sections are selected on the same basis.