Yesterday, the DOJ released its 38-page Merger Remedies Manual, which updates its 2004 Policy Guide and provides a framework for the Antitrust Division to structure and implement appropriate remedies in merger cases. The DOJ’s press release announcing the new manual notes that it explains the Antitrust Division’s approach to consummated transactions and upfront buyers, outlines certain “red flags” that increase the risk that a remedy will not preserve competition effectively, and reflects important principles implemented in recent Antitrust Division consent decrees.
This excerpt from DOJ’s announcement highlights key elements of its approach to merger remedies that are embodied in the new manual:
Commitment to Effective Structural Relief. The Merger Remedies Manual emphasizes that structural remedies are strongly preferred in horizontal and vertical merger cases because they are clean and certain, effective, and avoid ongoing government regulation of the market. The manual also describes the limited circumstances in which conduct remedies may be appropriate: (1) to facilitate structural relief, or (2) if there are significant efficiencies that would be lost through a structural divestiture, if the conduct remedy would completely cure the competitive harm, and if it can be enforced effectively.
Renewed Focus on Enforcing Consent Decree Obligations. The principles outlined in the Merger Remedies Manual describe how the Antitrust Division will ensure that consent decrees are fully implemented. The manual describes several standard consent decree provisions designed to improve the effectiveness of consent decrees and the Antitrust Division’s ability to enforce them. In addition, the Manual highlights the role of the newly created Office of Decree Enforcement and Compliance, which oversees the Antitrust Division’s decree compliance efforts.
-John Jenkins, DealLawyers.com September 4, 2020