The Elephant in the Room: Litigating the Fix after Arch Coal and Dairy Farmers

Abstract

Parties to proposed mergers are seeking with increasing frequency to eliminate competitive concerns by restructuring their transactions or selling overlapping assets to third parties. These efforts do not always eliminate the concerns of the enforcement agencies, which have challenged a number of these self-help, or fix-it-first, remedies. In a setback for the enforcement agencies, the courts have been willing to consider these self-help remedies when evaluating the overall competitive effects of a transaction. This article describes the standards under which courts evaluate these fix-it-first remedies.

Keywords: antitrust, merger review, merger remedies

JEL Classification: K21