Until recently, the U.S. antitrust agencies commonly resolved concerns regarding proposed mergers by entering a consent decree with the merging parties that included remedies. The merging parties might sell off overlapping assets or make behavioral commitments to address agency concerns, but the transaction would be allowed to proceed. Senior officials at the U.S. Department of Justice Antitrust Division ("DOJ") and the U.S. Federal Trade Commission ("FTC"), however, have now made clear that their agencies will no longer entertain or will sharply limit resolutions through consent decrees with remedies, preferring to challenge transactions outright. The agencies' new positions on remedies have dramatically changed the U.S. merger review landscape for transactions that potentially raise antitrust concerns, leading parties to such transactions increasingly to contemplate "fix-it-first" strategies. With fix-it-first, the parties modify the transaction to address antitrust concerns, typically by entering an agreement with a third party to sell divested assets, without entering a consent decree with the agency. The agency can then either clear the transaction based on the proffered remedy or litigate over the remedy's adequacy and sometimes over whether the transaction may lessen competition in the first place.
Originally Published by CPI Antitrust Chronicle
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