Sep 4, 2020 - Economy & Business

DOJ updates merger remedies guidelines for first time in nearly a decade

Illustration of a blueprint of a gavel surrounded by formulas.
Illustration: Aïda Amer/Axios

The U.S. Department of Justice on Thursday updated its merger remedies guidelines for the first time in nearly a decade.

Why it matters: This is the new framework for how DOJ plans to solve for antitrust concerns, including for mega-mergers that reshape industries.

The big winner is private equity, which for the first time received explicit and positive mention as a viable "divestiture buyer" of assets that merging companies may be required to sell.

  • DOJ writes that "in some cases a private equity purchaser may be preferred," due to its financial resources, strategic flexibility, and access to industry expertise.

Divestiture is a major theme in the new manual.

  • DOJ writes that "structural remedies are strongly preferred" to conduct remedies.
  • In other words, it would rather the merging companies divest their way out of antitrust concerns than promise to be on their best behavior (i.e., conduct remedy).

Looking ahead: DOJ last week said it's considering a review of its bank merger rules.

  • In quasi-related news, The NY Times reports that DOJ plans to file antitrust charges against Google by month's end, with AG Barr overruling "career lawyers who said they needed more time to build a strong case."

The bottom line: The new guidelines are in keeping with what we've seen in practice from Trump's DOJ, but now it's been codified.

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