Merger Remedy Divestitures: the Agencies Zig and the Courts Zag
In this article for the Summer 2023 edition of Antitrust Magazine, Golden Flag Partners Matt Reilly and Richard Cunningham, along with former Golden Flag partner Ben Wallace, now an Assistant U.S. Attorney in the District of Delaware, authored an article on merger remedy divestitures, highlighting that while the DOJ and FTC have become more hostile to remedies in recent years, the courts are increasingly acknowledging and adopting a remedy-favorable legal standard.
"... Implementing divestitures effectively is no small task, and careful thought and planning must be given to ensuring that the divestiture buyer will receive the hard, human, and intellectual-property assets that it needs to compete vigorously. But calling into question divestitures as a remedy, or imposing unnecessary frictions to such remedies, amounts to turning away from decades of accumulated knowledge and established practice."
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