DOJ, FTC More 'Upfront' About Divestiture Requirements Than Ever

July 25, 2016

Lost in all the publicity over high-profile mergers that have foundered for lack of an acceptable remedy, either at the antitrust agencies or in court following an agency challenge, is the fact the agencies continue to resolve the vast majority of merger challenges by consent but are doing so with a marked increase in the use of upfront buyers. The uptick in upfront-buyer requirements in consent orders is most pronounced in deals reviewed by the U.S. Department of Justice, a change presaged by DOJ speeches and interviews early in the tenure of Assistant Attorney General Bill Baer, a strong proponent of upfront-buyer requirements during his tenure as director of the Bureau of Competition at the Federal Trade Commission.

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