A senior US Department of Justice antitrust official advised merging parties to propose remedies when they file their premerger notification in order to speed the review of a potentially problematic transaction.
A senior US Department of Justice antitrust official advised merging parties to propose remedies when they file their premerger notification in order to speed the review of a potentially problematic transaction."If you really want to move something forward more quickly, one approach that I would suggest is that the counsel and the parties who are engaging in a transaction that may raise competitive concerns may find it helpful to analyze the areas of competitive concern carefully and propose a remedy contemporaneously with the HSR filing," George Nierlich, deputy director of civil enforcement at the DOJ's Antitrust Division, said at a conference*.
"In other words, the 'fix-it-first' approach. That can save an enormous amount of time for everyone involved," he said.
Nierlich said that as a DOJ staff member, when he and fellow enforcers are thinking about remedy proposals, they consider whether it will fix the competitive concern, and whether the remedies will succeed. "Is it consistent with the idea that enforcement is a scalpel instead of a sledgehammer?" he said.
The DOJ official said that there are sophisticated M&A counsel that enforcers see regularly who are well aware of areas of potential concern. They can "try to come up with a market-based solution and then present that at the time of filing. And that we very much hope will move things forward more quickly," he said.
The DOJ official cited the approach of Antitrust Division Assistant Attorney General Gail Slater and Federal Trade Commission Chairman Andrew Ferguson to stopping anticompetitive mergers while making sure the agencies "get out of the way without delay" for transactions that don't raise competitive concerns.
"So, as you all know, the revised HSR form provides additional information, and I think that will help meet those goals," Nierlich said.
*Antitrust Under Trump: Ferguson, Slater, Caffarra & Mundt Weigh In. FGS Global + Capitol Forum. April 2, 2025.
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