Litigating the Fix: A Legal Overview Taylor M. Owings, William H. Rooney, Adriana Morton, Sarah Zhang

Abstract

When a proposed merger or acquisition draws the scrutiny of the U.S. antitrust agencies (the Department of Justice or Federal Trade Commission), parties sometimes propose divestitures targeted to address the competitive concerns. If the proposed divestitures are deemed unsatisfactory by the reviewing agency, the parties may propose them in defense of the transaction in court as an effectively modified transaction. That process is known as “litigating the fix.” The 2023 William Howard Taft Lecture, sponsored by the Antitrust Law Section of the New York State Bar Association in collaboration with the Columbia Business Law Review on November 29th, 2023, addressed the proper legal standard that courts should apply when evaluating such “fixed” transactions. This Article, authored by the Moderators of the Lecture, summarizes the regulatory structure, enforcement perspectives, and developing law relating to “litigating the fix” as a foundation for the following articles on the subject by the 2023 Taft Co-Lecturers, Mr. Daniel Haar and Ms. Sara Razi.