Justice Department Revises Merger Remedies Guidelines

What happened?

On September 3, 2020, the Department of Justice ("DOJ") issued a revised Merger Remedies Manual, which sets forth the Division's framework for implementing remedies to resolve antitrust concerns in merger cases. The new manual updates DOJ's guidelines for merger remedies for the first time in nearly a decade and reaffirms the Division's strong preference for structural relief. The Division's 2004 Policy Guide to Merger Remedies noted that "structural remedies are preferred to conduct remedies in merger cases because they are relatively clean and certain, and generally avoid costly government entanglement in the market." DOJ eliminated the absolute preference for structural rather than conduct remedies when it issued its 2011 Policy Guidelines to Merger Remedies, noting that different types of mergers present "different competitive issues and, as a result, different remedial challenges." However, the Division withdrew the 2011 guidelines in 2018