Under their current leadership, the U.S. federal antitrust agencies have shown antipathy to resolving merger investigations through remedy undertaking that are embodied in consent decrees, preferring instead to seek to prohibit transactions outright. This sea change in merger enforcement policy is leading merging parties increasingly to contemplate “fix-it-first” strategies, whereby the parties modify the proposed transaction to address antitrust concerns — typically by reaching an agreement with a buyer of assets to be divested — without entering a consent decree with the agency. The agency is then left with the choice of either clearing the transaction or litigating over the adequacy of the remedy. In this article, we discuss the background and implications of the agencies’ new positions and the potential benefits and challenges of a fix-it-first strategy for merging parties.
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