DOJ Releases New Merger Remedy Guide

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The DOJ has released an updated merger remedies guide that provides an overview on how the DOJ Antitrust Division staff will analyze proposed remedies in merger matters. The revised guide places an increased emphasis on behavioral or conduct remedies to address issues raised by vertical transactions.

On Friday, June 17, the Department of Justice (DOJ) released an updated merger remedies guide that provides an overview on how the DOJ Antitrust Division (Division) staff will analyze proposed remedies in merger matters. This is the first update the Division has issued since the issuance of the original guide in 2004. The primary difference between the 2004 and updated merger remedies guide is the Division’s position that conduct or behavioral remedies are often appropriate to address concerns raised in vertical transactions. Although this is a change in policy, it reflects the types of remedies the Division has implemented over the last two years. For example, the Division has required behavioral remedies in several large transactions over the last two years, including Comcast/NBCU, Ticketmaster/Live Nation and GrafTech/Seadrift. The other major changes include the requirement of an up-front buyer for particular divestitures, the potential inclusion of “crown jewel” remedies, and the consolidation of all Division oversight of remedies with the Division's Office of General Counsel.

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