Fix-It-First: Navigating A Seismic Shift In US Antitrust Agency Approaches To Merger Remedies

Introduction

Senior officials at the US Department of Justice Antitrust Division (DOJ) and the US Federal Trade Commission (FTC) have made clear that they will not entertain or will sharply limit resolutions of merger investigations through consent decrees with remedies, preferring to challenge transactions outright. The agencies' new positions on remedies have dramatically changed the US merger review landscape for transactions that potentially raise antitrust concerns, leading parties to such transactions to increasingly 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 is then left with the choice of either clearing the transaction or litigating over the adequacy of the remedy (and sometimes over whether the transaction may lessen competition in the