Competition Law and Antitrust Law

The U.S. antitrust enforcement agencies are signaling a potential shift in their approach to merger remedies, with recent settlements incorporating behavioral provisions alongside traditional divestitures. This development raises critical questions about when conduct-based relief may be acceptable and how parties should structure remedy proposals to address competitive concerns while preserving deal value.

Traditionally, the U.S. Federal Trade Commission (FTC or the Commission) and the Antitrust Division of the U.S. Department of Justice (DOJ or DOJ Antitrust) have used pre-litigation merger settlements to resolve challenged deals. Although such remedies fell out of favor during the Biden administration, FTC and DOJ leadership in both Trump administrations have accepted divestitures to resolve competitive concerns.

A bipartisan coalition of state attorneys general, led by Minnesota's Keith Ellison, has launched an aggressive enforcement campaign targeting data-sharing arrangements that facilitate anticompetitive behavior. The Agri Stats settlement and parallel actions against rental industry players reveal how third-party data aggregators can become vehicles for collusion, even without direct competitor coordination. Companies participating in information exchange programs now face heightened scrutiny as state AGs dem