by Joel Mitnick and Ngoc Pham Hulbig
On September 3, 2020, the Department of Justice (“DOJ”) issued a revised Merger Remedies Manual (PDF: 312 KB), which sets forth the Division’s framework for implementing remedies to resolve antitrust concerns in merger cases. The new manual updates DOJ’s guidelines for merger remedies for the first time in nearly a decade and reaffirms the Division’s strong preference for structural relief. The Division’s 2004 Policy Guide to Merger Remedies (PDF: 367 KB) noted that “structural remedies are preferred to conduct remedies in merger cases because they are relatively clean and certain, and generally avoid costly government entanglement in the market.” DOJ eliminated the absolute preference for structural rather than conduct remedies when it issued its 2011 Policy Guidelines to Merger Remedies (PDF: 202 KB), noting that different types of mergers present “different competitive issues and, as a result, different remedial challenges.” However, the Division withdrew the 2011 guidelines (PDF: 83.4 KB) in 2018 and reinstated the 2004 guidelines, indicating a return to its preference for structural remedies. The new 2020 guidelines firmly codify that preference with even stricter language in some cases.