Under the Obama Administration, the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) have not hesitated to litigate antitrust merger and conduct cases. Settlements in several recent high-profile antitrust matters (e.g., US Airways/American Airlines, Anheuser-Busch InBev/Grupo Modelo, Honeywell/Intermec, Nielsen/Arbitron, and major book publishers) highlight that the government enforcement agencies are willing to resolve antitrust cases before or during litigation.

Recent speeches by officials from the DOJ and the FTC emphasized the role of remedies in civil and criminal cases, and provided guidance to companies regarding the settlement process. Both officials noted that their guidance generally is applicable to matters before both the DOJ and FTC because the agencies are well aligned with respect to remedies.

FTC Bureau of Competition Director Deborah Feinstein, in a recent speech on the significance of consent order remedies, elaborated on the benefits to resolving matters through settlement rather than litigation. In her view, consent orders have the benefit of reaching a resolution quicker and with more certainty, and settlements are less resource intensive for the government, the companies involved and third parties. Also, the government can tailor the remedy to the facts more specifically in the settlement context, compared to what a court can do in the litigation context.