DOJ's First Antitrust Arbitration Is Unlikely Its Last

On Monday, March 9, 2020, the Department of Justice, Antitrust Division announced that it had prevailed in its first-ever arbitration of a merger issue, in United States v. Novelis Inc. et al.¹ The parties (Novelis Inc. and Aleris Corp.) had announced the merger in July 2018, and received U.S. approval to close the acquisition prior to completing the arbitration, subject to a requirement to divest the overlap facility if the Division prevailed in the arbitral proceeding.²

After filing a complaint in the federal district court for the Northern District of Ohio, the Division agreed with the merging parties to submit to confidential, binding arbitration the narrow but dispositive issue of market definition.³ The Division agreed that if it lost, it would move to dismiss the complaint; Novelis agreed that in the interim, it would continue good faith negotiations with a divestiture purchaser in the event it lost.⁴