Conduct Remedies: A Major Change In DOJ Merger Cases

Law360, New York (October 4, 2012, 5:09 PM EDT) -- What a difference an administration makes. The U.S. Department of Justice Antitrust Division for decades has evinced a strong preference for structural remedies (mainly divestitures of overlapping businesses) over conduct remedies (like pricing or other behavioral commitments).[1] This long-standing policy reflected not only the DOJ’s preference for certainty and avoidance of costly government entanglement in business, but also its lack of resources dedicated to monitoring post-closing compliance by merging parties.[2]

Over the years, the DOJ has disfavored conduct remedies because it believed they potentially suffered from...
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