Answer ... The agency and parties may negotiate remedies that would alleviate the agency’s concerns. The most common remedy is divesture – the acquiring company agrees to divest a certain portion of its existing assets or a portion of the assets that it will acquire. The agency can also negotiate behavioural remedies with the parties, but that is less common. Behavioural remedies impose binding commitments to mitigate the anti-competitive effects of the transaction.

Answer ... Remedies can be proposed at any time during the process and it is not unusual for parties to propose a ‘fix it first’ divestiture early in the process if they know the transaction is unlikely to get approved without some divestiture. While there is no formal procedure for negotiating and submitting remedies, parties should weigh certain factors in deciding when and what to provide about remedies. For example, presenting a fix very early in the process, before the agencies have issued a second request and received documents may not save the parties too much time, as the agencies will still need to conduct a detailed enough investigation to determine whether the fix solves the issues or whether additional issues will remain. Parties should also expect that the agencies will do a ‘deep dive’ into any proposed remedy to determine whether the buyer will be a sufficient owner with the right capabilities and incentives to solve any competitive issues, and will scrutinise exactly what assets will be divested, whether other or additional assets would be necessary to operate the business effectively, and how the buyer will support the business.

Answer ... There is no separate standard for reviewing foreign-to-foreign transactions and, while not a lot of foreign-to-foreign deals have resulted in asset divestitures outside the United States, the agencies have full authority to require divestitures to remedy likely harms in the United States.