Canadian COMPETITION LAW

The U.S. Department of Justice, Antitrust Division (DoJ) has released an updated Policy Guide to Merger Remedies.

In making the announcement, the DoJ said:

“Although the updated policy guide reflects changes in the merger landscape, the goal of the Antitrust Division remains the same – to provide an effective remedy to eliminate the anticompetitive effects of a proposed transaction, the department said.

“In every case, the Antitrust Division focuses on the specific facts of the proposed transaction. We are prepared to clear a merger, block a merger or accept a remedy that maintains efficiencies as long as the result eliminates any competitive harm,” said Assistant Attorney General Christine Varney of the Department of Justice’s Antitrust Division. “In the current environment of increasing transnational mergers and complex vertical transactions, the Antitrust Division must be ever nimble in its efforts to ensure that any remedies effectively preserve competition, promote innovation and protect consumers. The updated policy guide takes into account these changes.”

The updated policy guide highlights the role of the Antitrust Division’s recently created Office of the General Counsel, which will be principally responsible for enforcing division consent decrees. The updated policy guide also reflects the changes in the merger landscape and the lessons the division has learned from the remedies it has entered into since the issuance of the original guide in 2004, ensuring that it accurately details the division’s merger remedy practices.”

Like Canada, the DoJ’s Policy Guide to Merger Remedies sets out how the U.S. DoJ’s Antitrust Division analyzes proposed merger remedies, including structural remedies (divestitures of assets, businesses or intangible assets, i.e., intellectual property) or behavioural remedies (altering the conduct of a post-merger entity such as through firewalls or partitions, non-discriminatory purchase or supply terms, mandatory licensing or anti-retaliation provisions).

The DoJ’s revised Policy Guide to Merger Remedies also addresses, like the Bureau’s 2006 Information Bulletin on Merger Remedies in Canada, key considerations for the negotiation and implementation of merger remedies, including the timing for adoption of remedies (e.g., “upfront” or “fix-it-first” remedies versus post-completion adoption of remedies), the use of hold separate provisions (to prevent the integration of merger assets until a remedy is negotiated) and selling trustees.

For more see DoJ news release: Antitrust Division Issues Updated Merger Remedies Guide: Updated Guide Recognizes Change in Merger Landscape, Department of Justice Policy Guide to Merger Remedies and the Bureau’s Merger Remedies Information Bulletin: Information Bulletin on Merger Remedies in Canada.

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