August 1, 2021

Volume XI, Number 213

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July 29, 2021

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FTC Commissioners Question Use of Divestiture as an Effective Merger Remedy

Divestiture has long been considered an appropriate and effective remedy for anticompetitive horizontal mergers. The Federal Trade Commission (“FTC”), as reflected in the Statement of the Bureau of Competition entitled Negotiating Merger Remedies, and the Antitrust Division of the Department of Justice, as stated in its updated Merger Remedies Manual, agree that divestiture can effectively “preserve competition,” i.e., the ultimate goal of a merger remedy.

However, FTC Commissioners Rohit Chopra and Rebecca Slaughter (both Democrats) recently expressed their disapproval with the “status quo” approach applied to a merger in the pharmaceutical industry. Among other things, Commissioners Chopra and Slaughter expressed concern that in some cases, the divestitures failed at preserving the assets divested. In addition, Commissioners Chopra and Slaughter advocate for a remedy that not only addresses the competitive concerns raised by the transaction under investigation, but also shuts down the ability for market participants to engage in futuristic actions—like collusive conduct—that might have an adverse competitive effect. Commissioners Chopra and Slaughter also advocate for increased collaborations with other government agencies, and for seeking testimony from key executives on corporate strategies and design to assist with enforcement efforts.

©2021 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume X, Number 310
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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...

202-861-4182
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