Litigating the Remedy Daniel E. Haar

Abstract

In recent years, merging parties have with increasing frequency proposed divestitures during litigation in attempts to address competitive concerns with their mergers. These proposals raise the question: How should a court evaluate a challenge to a merger once such a divestiture has been proposed? In particular, should the court evaluate the competitive effects of the merger with or without the proposed divestiture factored in? Looking at the text of the Clayton Act and the Hart-Scott-Rodino Act, federal court precedent, and the antitrust laws’ procompetitive goals, this Article argues that courts should evaluate mergers as structured at the time of the complaint, and if the merging parties propose a divestiture to address potentially anticompetitive effects of the merger during litigation, the divestiture should properly be treated as a proposed remedy to be considered after a liability determination.