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At the same time, the FTC will publish an analysis of the proposed consent order to aid the public. C April 3, Decision and Order, at p. Today, both agencies have a stated policy that the divestiture must be accomplished quickly, so that when divestitures are allowed to be undertaken after consummation of the merger,39 the specified period normally ranges from three to six months although there have been instances where a shorter period is imposed,40 and there are still occasions where 12 months is deemed acceptable.

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Consent orders entered into with the DOJ typically contain an obligation to preserve assets, generally requiring 0510214commplaint parties to take all steps necessary to preserve the divestiture assets and not to take any actions that would jeopardize the divestiture. Finally, conduct relief has been used in addressing the competitive issues raised by vertical mergers. In re Nestle Holding, Inc.

The FTC uses upfront buyer provisions frequently.

Buyers who have not operated in the industry are at a severe disadvantage in defining what assets they need and determining whether they are receiving all the assistance to which they are entitled. Goal of Antitrust Remedies advertisement. July 6, Competitive Impact Statement, at 15available at http: In such cases, a consent decree may require the seller to enter into a short-term supply agreement with the buyer, which can help prevent the loss or weakening of the divested assets during the transitional period.

However, the Staff only examined 37 of the 50 divestitures embodied in those 35 consent decrees. Both agencies will closely examine proposed buyers to ensure that qualified buyers are selected and such buyers have the incentive, experience, and ability to utilize the divested assets to restore competition in the market.

In addition, the Study suggests: Crown jewel provisions allow the reviewing agency to sweeten the package initially required to be divested by requiring merging parties to divest additional or different assets in the event the parties fail to divest the initial divestiture package as contemplated under, or within the time period specified in, the consent order.


One example where the FTC required the parties to enter into a consent order even after they had restructured their transaction is the transaction between Buckeye Partners and Shell Oil Company. Conduct relief is often used by both agencies to enhance the effectiveness of structural relief. Monitor Trustees When a divestiture will take place after the parties have consummated their merger, both agencies require that the parties hold the divestiture assets separate and maintain them in the ordinary course so that a viable business can be divested.

For example, in the petroleum industry, the FTC has permitted the divestiture of discrete assets or groups of assets that previously had not operated as autonomous businesses after an investigation led the 22 FTC Divestiture Study, at Conclusion As has been seen, the U.

While both agencies require the parties to enter into hold separate orders, the agencies diverge with respect to the appointment of interim trustees. It may be that a more conservative approach to merger remedies is correlated with the existence of a separate staff whose sole purpose is to address remedy compliance issues.

Whatever the reason for the differences, the divergent approaches to certain key consent decree issues have real world consequences for merger parties. The Staff studied 35 consent orders that involved 50 divestitures in the aggregate. DOJ approval requires satisfying three fundamental tests.

Rather than indifference or hostility that is exhibited by some [selling firms], this [selling firm] had an internal reason to see the divestiture succeed. The two agencies apply similar tests assessing whether to approve a proposed buyer. This lack, this industry ignorance, is not the result of carelessness, of a failure to perform due diligence, or of poor judgment; it is an inherent characteristic of entering a new business.

II. Goal of Antitrust Remedies

Most mergers believed by the agencies to result in anticompetitive harm are not litigated, but rather are resolved by remedies included in a consent decree negotiated with the parties. In addition to requiring the merging parties to divest small container commercial waste hauling assets, the proposed consent decree also requires Waste Industries to shorten its existing and future contracts for small container commercial waste-hauling services.


The agencies differ in their policies on upfront buyers. Both agencies have a preference for clean-sweep divestitures over mix-and-match asset packages, although the FTC preference appears to be more pointed. In public statements, the FTC has articulated a preference for an upfront buyer when the parties 0501214 divesting a package of assets that has not previously operated as an autonomous business.

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The FTC imposes similar requirements. Of course, an injunction is the most powerful weapon in the agency arsenal to prevent an anticompetitive merger from being consummated. To the contrary, the FTC has a long history of using crown jewel provisions starting with occasional uses as early of the s. DOJ Policy Guide, at The consent order required Buckeye to notify the FTC of any intention to acquire an interest in the Niles terminal and required Shell to notify the FTC of any intention to sell any interest in that terminal, both for a period of ten years.

Procedural History While both the Antitrust Division and the FTC are authorized to settle merger challenges without having to litigate, the authority on which each agency can do so differs. Differences Between the DOJ and the FTC While there are many similarities in merger remedies policy and practice, there are significant differences between the DOJ and FTC that can and not infrequently do have a real world impact on how quickly merging parties can complete their transaction and achieve the procompetitive efficiencies of their transactions.

Both the DOJ and FTC prefer structural relief to conduct restrictions, heavily employing divestiture as a remedy while limiting conduct relief to narrow circumstances. Examples of crown jewel provisions include adding more production facilities or retail outlets or even requiring the parties to divest the larger of two overlapping businesses if the smaller one has not been sold.