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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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The Department of Justice’s Antitrust Division (the “Division”) issued a new policy guide last week for merger remedies, the first such update since 2011. The Merger Remedies Manual (the “Manual”) outlines the methods by which the Antitrust Division will design and implement relief measures in cases of mergers and acquisitions that the Division has concluded may substantially lessen competition. Accordingly, the Manual does not analyze Division policy with respect to the identification of potentially problematic mergers, but instead analyzes how a merger violation will be resolved by the Division.

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According to the Manual, the two fundamental guideposts that the Division will observe in its determinations as to appropriate remedies are (1) the remedy must be related to the competitive harm caused by the merger; and (2) there must be a logical nexus between the remedy and the violation; in other words, the remedy must fix the competitive harm caused by the merger. Additionally, the Division will be guided by the following principles in evaluating merger remedies:

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In addition, the Manual discusses the formation of the newly created Office of Decree Enforcement and Compliance. The Office, which reports to the Office of the Chief Legal Advisor, oversees, evaluates, and provides oversight for remedies sought in order to ensure that remedies are consistent and compliant with the guidance set out in the Manual. In addition to these compliance functions, the Office will also be tasked with ensuring that a decree, once entered, is fully implemented. This will include monitoring a sale, reviewing the sale process, evaluating the buyer, and ensuring that the divestiture will allow for vigorous competition.

For further information about antitrust compliance and enforcement in mergers and acquisitions, please contact a member of Thompson Hine’s Antitrust, Competition &amp; Distribution team.

Matthew D. Ridings, CCEP 216.566.5561 <a href="mailto:Matt.Ridings@ThompsonHine.com">Matt.Ridings@ThompsonHine.com</a>

Michael W. Jahnke 212.908.3980 <a href="mailto:Michael.Jahnke@ThompsonHine.com">Michael.Jahnke@ThompsonHine.com</a>

Joshua Shapiro 212.908.3910 <a href="mailto:Joshua.Shapiro@ThompsonHine.com">Joshua.Shapiro@ThompsonHine.com</a>

Mark R. Butscha, Jr. 216.566.5897 <a href="mailto:Mark.Butscha@ThompsonHine.com">Mark.Butscha@ThompsonHine.com</a>

Thomas F. Zych 216.566.5605 <a href="mailto:Tom.Zych@ThompsonHine.com">Tom.Zych@ThompsonHine.com</a>

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2022/04/Justice_Department_Issues_First_Update_to_Antitrust_Merger_Remedies_Guidance.pdf

Justice Department Issues First Update to Antitrust Merger Remedies Guidance in a Decade

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