Remedies

Remedies: mergers are largely an administrative process rather than judicial, reflected in remedies

Prohibition: court imposes a preliminary injunction, leading the parties to abandon the deal

• Negotiated settlement: After getting to second request, merging firms will start negotiating with the agency (settlement is the usual outcome)
• Designing a remedy:

Identify assets for divestiture

Determine the capability of a buyer

Timing of remedy (“fix it first”): depends on whether merging parties are repeat players – if they are, agencies will tell the firm to fix the merger and return after to negotiate

• Agents occasionally impose aggressive timelines: if fix isn’t implemented by some date, then the firm will have to sell off assets (like crown jewels)

“Litigating the fix”: if consent decree negotiations fail, both parties will try to position what happened to help them win the case

• D: we all agreed, so agency shouldn’t prevail in blocking the merger
• Agency: will reframe the issue
• Tunney Act review (DOJ settlements, not FTC): courts review settlements