USA Trends and Developments Contributed by: Bradley Justus, Lisl Dunlop, Josh Jowdy and Sandhya Taneja, Axinn
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Merger Remedies Return During the Second Trump Administration During President Donald Trump’s second administra - tion, negotiated merger remedies are making a come - back. In the antitrust context, a “negotiated remedy” refers to an agreement between merging companies and government antitrust enforcers designed to address the agencies’ competitive concerns while otherwise allowing the transaction to close. Histori - cally, negotiated remedies have included divestitures, licensing obligations, or behavioural commitments intended to preserve competition in the relevant markets. Unlike some jurisdictions, the US antitrust agencies have historically had a strong preference for divestiture remedies. Agency practice sharply deviated from these histori - cal practices at the beginning of this decade. From 2021 to 2024, during the Biden administration, nego - tiated merger settlements all but disappeared. This was the product of a deliberate policy decision by leadership in both US antitrust agencies, asserting a focus on being “enforcers” of the antitrust laws “not regulators”, as Jonathan Kanter, former Assistant Attorney General for the Antitrust Division of the US Department of Justice, explained. At the very start of his appointment, Kanter announced that, “when the [DOJ] concludes that a merger is likely to lessen com - petition, in most situations we should seek a simple injunction to block the transaction”. Kanter explained that this approach was motivated by his preference to make new precedent in litigation and his scepti - cism of the agencies’ ability to reliably predict the effectiveness of a proposed divestiture. Likewise at the FTC, then-Chair Lina Khan committed to “focus -
ing [its] resources on litigating, rather than settling” merger challenges, in light of the “checkered” history of negotiated remedies. From the beginning of President Trump’s second term in 2025, new leadership at the antitrust agen - cies immediately began signalling a return to open - ness to merger settlements. In 2025, then-Assistant Attorney General (AAG) Gail Slater encouraged parties to propose remedies that they believed would resolve the agencies’ concerns. These “fixes” may address any aspect of a transaction that could allegedly harm competition. At the FTC, Chairman Andrew Ferguson similarly committed to establishing a “realistic rem - edies program” that departed from the all-or-nothing approach of his predecessor. In practice, over the last year the US antitrust agen - cies have indeed entered settlement agreements for merger challenges more frequently than they had in the previous administration. This has been a welcome development for businesses – but, also, a develop - ment that parties are approaching cautiously. Parties are continuing to assess the effectiveness of proffer - ing a remedy in litigation rather than proposing rem - edies early in the investigation – so-called “litigating the fix” – which has generated some frustration on the part of agency leadership. In addition, merger rem - edies appear to be raising political issues, posing new considerations for parties. For example, one recent remedy has prompted comment from Democrat sena - tors and the involvement of state attorneys general in its review, and another addressed freedom-of-speech concerns with a behavioural remedy.
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