On Sept. 3, the Antitrust Division of the Department of Justice (DOJ) released the Merger Remedies Manual (the manual), which provides guidance on how the agency currently intends to approach the structure and implementation of remedies in merger cases. See Antitrust Div., U. S. Department of Justice, “Merger Remedies Manual” (2020). Assistant Attorney General Makan Delrahim, the head of the Antitrust Division, said that the new manual reflects the DOJ’s “renewed focus on enforcing obligations in consent decrees and reaffirms the Division’s commitment to effective structural relief.” Press Release, Office of Pub. Affairs, Department of Justice, ”Justice Department Issues Modernized Merger Remedies Manual” Sept. 3, 2020). The manual is the first updating of the policy in nearly a decade—the DOJ last issued guidance on merger remedies during the Obama administration with the publication of the 2011 Policy Guide on Merger Remedies (the 2011 Policy Guide). See Antitrust Div., U. S. Department of Justice, ”Antitrust Division Policy Guide to Merger Remedies” (2011). The 2011 Policy Guide was later withdrawn by Delrahim in 2018 in light of a broader initiative to shorten the duration of merger reviews. See Makan Delrahim, Assistant Atttorny Gen., Antitrust Div., U.S. Dep’t of Justice, “It Takes Two: Modernizing the Merger Review Process,” Remarks as Prepared for the 2018 Global Antitrust Enforcement Symposium, at 11-12 (Sept. 25, 2018). The manual replaces the now withdrawn 2004 Policy Guide to Merger Remedies (the 2004 Policy Guide). See Antitrust Div., U. S. Department of Justice, ”Antitrust Division Policy Guide to Merger Remedies” (2004).
A key feature of the manual is the stated strong preference for structural remedies over behavioral remedies, which Delrahim has openly criticized in the past. Additionally, the principles in the manual apply equally to both horizontal and vertical mergers, which is in accord with the 2004 Policy Guide but departs from the withdrawn, Obama-era 2011 Policy Guide. The 2011 Policy Guide distinguished between remedies for vertical and horizontal mergers and emphasized the suitability of conduct remedies for mergers raising vertical concerns. The manual also provides new guidance on the process and suitability of “fix-it-first” remedies, consent decree terms, evaluation of pre-approved buyers, including private equity and investment fund buyers, remedies for consummated deals, and red flags to look out for in proposed remedies.
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