October 27, 2020

Volume X, Number 301

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October 27, 2020

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October 26, 2020

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Department of Justice Issues Updated Merger Remedies Manual

On September 3, 2020, the U.S. Department of Justice (“DOJ”) updated its Merger Remedies Manual (“the Manual”). This is the first update of the Manual since 2011, and it reinforces DOJ’s commitment to effective structural relief (through divestiture) and its focus on the enforcement of consent decree obligations. 

As in the previous version of the Manual, DOJ makes the point that a successful divestiture is not dependent upon the purchase price. In other words, DOJ is concerned with the preservation of competition, not that the seller obtains the best price. As anticipated, DOJ prefers a clean break between the firm and its divested assets. In that regard, DOJ identifies characteristics of situations where a proposed “remedy will not effectively preserve competition.” That list includes:

  • divestiture of less than a stand-alone business,
  • mixing and matching assets of the merging firms,
  • allowing the merged firm to retain rights to critical intangible assets,
  • ongoing entanglements, and
  • substantial regulatory or logistical hurdles that the parties must overcome prior to divestiture.

The Manual applies to both horizontal and vertical mergers, and emphasizes that the remedies must preserve competition, not require ongoing regulatory oversight, and be enforceable.   

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 261
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About this Author

John Steren, Epstein Becker Law Firm, Health Care Litigation Attorney
Member

E. John Steren is a Member of the Firm in the Health Care & Life Sciences and Litigation & Business Disputes practices, in the Washington, DC, office of Epstein Becker Green. Mr. Steren devotes a significant portion of his practice to helping health care organizations manage the antitrust risks of joint ventures and other business arrangements. He also focuses his practice on other complex commercial and civil litigation matters.

202-861-1825
Patricia M. Wagner, Epstein becker green, health care, life sciences
Member

PATRICIA M. WAGNER is a Member of the Firm in the Health Care and Life Sciences and Litigation practices, in the firm's Washington, DC, office. In 2014, Ms. Wagner was selected to the Washington DC Super Lawyers list in the area of Health Care.

Ms. Wagner's experience includes the following:

Advising clients on a variety of matters related to federal and state antitrust issues 

Representing clients in antitrust matters in front of the Federal Trade Commission and the United States Department of Justice, and state antitrust authorities 

Advising clients on issues related HIPAA Privacy and security

Advising clients on issues related to state licensure and regulatory requirements

202-861-4182
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