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Remedies

What are the potential outcomes of the merger investigation? Please include reference to potential remedies, conditions and undertakings.

Both the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice have the authority to seek to enjoin or unwind a merger that is likely to substantially lessen competition. A merger investigation has four potential outcomes:

  • No action is taken by the reviewing agency, in which case the parties are free to close the transaction at the expiration or termination of the waiting period prescribed by the Hart-Scott-Rodino (HSR) Act;
  • The parties are allowed to close the transaction based on negotiated structural (eg, divestiture) or behavioral remedies that resolve the reviewing agency’s antitrust concerns, typically subject to a consent decree;
  • The reviewing agency may seek to block the merger through litigation in federal court. Both the Antitrust Division and the FTC may seek a preliminary injunction in federal court to prevent the parties from closing the transaction. The FTC may also seek relief through administrative litigation before an administrative law judge; and
  • The parties may abandon the transaction at any time during the HSR review process.

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