Post-Order Merger Divestitures Likely To Face "Uphill" Battle With FTC

New guidance from the Federal Trade Commission's ("FTC") staff describes the FTC's views on "post-order" divestitures and highlights the difficulties in persuading the FTC to abandon its preference for upfront buyers in merger cases that require a divestiture.

The overwhelming majority of mergers challenged by the federal antitrust agencies are settled via agreements to divest assets. There are two primary paths to closing with such a settlement: (1) divestiture to an upfront buyer vetted by the FTC before the parties close their primary transaction or (2) a post-order divestiture allowing the parties to close their primary transaction before finding a buyer and completing the divestiture pursuant to an FTC order.