On September 3, 2020, the Antitrust Division of the DOJ issued a revised Policy Guide to Merger Remedies, following shortly after it announced a reorganization of its civil enforcement to create an Office of Decree Enforcement and Compliance.
The Policy Guide to Merger Remedies largely codifies a trend towards strengthening of the Division’s preference for structural remedies—such as divestitures—over conduct remedies—such as firewalls. This revision now expressly states that “[s]tructural remedies are strongly preferred in horizontal and vertical merger cases because they are clean and certain, effective, and avoid ongoing government entanglement in the market” (emphasis added), responding to a perception within the bar that vertical mergers (involving firms at different levels of the distribution chain that do not compete directly) are more amenable to conduct-only remedies. The Policy Guide also lays out conditions when the Division may accept a conduct-only remedy: (1) a transaction generates significant efficiencies that cannot be achieved without the merger; (2) a structural remedy is not possible; (3) the conduct remedy will completely cure the anticompetitive harm, and (4) the remedy can be enforced effectively.
Please click here to read the full alert memorandum.