Friday, October 22, 2004

New Policy Guide to Merger Remedies from the DoJ Antitrust Division

The Antitrust Division of the Department of Justice released a Policy Guide to Antitrust Remedies on Thursday, October 21. The guide is a policy document designed to help attorneys and economists to fashion remedies short of "full-stop injunction in merger cases."

A number of points are worth emphasizing about the policy guide. The Division expresses a preference for structural remedies over conduct remedies because the former are "clean and certain" and minimize government entanglement in the marketplace. Conduct remedies should be used only in situations where structural remedies would result in loss of efficiencies or when significant government oversight of the marketplace already exists. Structural remedies should ensure that the purchaser in a divestiture obtain all assets necessary to be an effective competitor, including intangible assets like intellectual property. In the case of patents, the guide speaks to the transfer of the rights in the patent to one of the entities and the possible use of compulsory or other types of licensing arrangements to protect competition in the marketplace.

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