DOJ Shows Flexibility, Creativity In Settling Biotech MergerJune 2007

A recent settlement in a biotech merger case may signal a greater willingness by DOJ to accept remedy provisions it previously would have rejected, especially to resolve vertical issues in industries heavily dependent on intellectual property and innovation. Rather than challenge Monsanto’s proposed acquisition of Delta and Pine Land Company, DOJ agreed to a settlement that departs from some of its traditional policies and practices regarding merger remedies. The announced remedy: (1) assembles a new competitor with a package of assets, tangible and intangible, drawn from both merging parties; (2) contains both structural and conduct relief; (3) contemplates divestitures to multiple third parties; (4) permits Monsanto to retain rights in divested assets; and (5) contains a "crown jewel" provision.