DealLawyers.com Blog

In a speech on June 4 at the George Washington University Competition and Innovation Lab Conference, Deputy Assistant AG Bill Rinner addressed how the Antitrust Division of the DOJ will approach merger review. While he stressed a commitment to robust enforcement, he also emphasized that the Division does not view dealmaking with inherent suspicion.

This Troutman Pepper Locke Regulatory Oversight blog lists these key takeaways for how the Division plans to handle merger reviews:

– The Antitrust Division has a strong preference for structural remedies or divestitures, not behavioral remedies, and it will “welcome” parties’ proposals to divest to third-party buyers – fix-it-first proposals.

• Where structural remedies are more complicated and involve ongoing commercial entanglements inherent to the industry, the agency would consider use of strong monitoring and enforcement mechanisms.
• Divestiture buyers will be rigorously reviewed to ensure that they have the incentive and ability to replace lost competition in every way, including product or service quality.

– It will not use its merger enforcement authority as leverage to get relief from the parties not related to the harm to competition that allegedly flows from the transaction itself.

– Second requests will only be issued where the Antitrust Division has merger-related concerns, not to build a civil or criminal conduct investigation.

– The agency will be transparent with parties about where it has concerns so that the parties can focus their advocacy on addressing those concerns.

– The Antitrust Division will not send letters to parties suggesting that an investigation is ongoing and if the parties proceed with the transaction, they will “close at their own risk.”

– The agency will seek judicial sanctions where parties systematically abuse legal privilege or withhold or alter documents required by the HSR Act.

– Meredith Ervine