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MLex Market Insight

DOJ’s revamped remedies manual champions role of divestiture over conduct commitments

MLex Market Insight

MLex Market Insight

News

4.99 Ratings

🗓️ 25 September 2020

⏱️ 20 minutes

🧾️ Download transcript

Summary

A revised merger-remedies manual published by the US Department of Justice is reverberating around the world, as the government agency’s antitrust chief, Makan Delrahim, puts forward rules that place divestitures — rather than conduct commitments — at center stage. The new guidelines will have direct consequences for dealmakers, who may now have to think twice before offering behavioral assurances over promises to simply sell off problematic assets. In Europe, meanwhile, LSE’s $27 billion deal to acquire financial-data company Refinitiv is set to put the European Commission’s regulatory acceptance of conduct commitments to the test.

Transcript

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0:00.0

Hey there, welcome back. This is Emlex's weekly podcast on regulatory affairs. Thank you for joining us yet again.

0:17.0

My name is James Panicki. I'm Emlex's Asia Pacific Senior Editor.

0:21.6

So today we thought we'd unpack some themes relating to mergers and acquisitions.

0:26.7

We'll drill down on an interesting case unfolding in the European Union at the moment,

0:31.6

that is the London Stock Exchange's plans to acquire Refinitive, a financial data company.

0:37.3

The regulatory clearance of that deal will involve some interesting soul searching on the reliability of behavioral as opposed to structural remedies.

0:46.3

And don't worry, we will provide a definition of structural versus behavioral very soon, so don't let that terminology put you off an otherwise fascinating topic

0:56.7

of conversation. First up, though, let's cross the Atlantic to talk about the US Department

1:02.0

of Justice's new merger remedies manual. The guidelines are the work of the DOJ's Antitrust Chief,

1:08.5

and the document has been read and passed by MNA

1:11.6

regulators around the world for good reason. Jenna Ebersole is an MLEXMNA correspondent

1:17.5

in Washington, D.C. She has written a fine piece of analysis on the manual, which we've posted

1:23.3

to our website, MlexmarketingSight.com. And she joins me now.

1:28.8

Jenna, firstly, tell me something about how this guide came about. What's the history?

1:34.8

Sure. So this guide, it was released earlier this month, and it follows some other previous

1:41.4

guide. So one was released in 2004 during the President Bush administration,

1:47.6

and then also a 2011 guide during President Obama's first term. So this guide, you know,

1:54.7

these are really meant to sort of capture how the DOJ is currently evaluating remedies for mergers. So, you know,

2:04.2

supposed to offer transparency, a little bit of insight into the criteria they consider, and how

2:09.8

they go about deciding if a remedy fixes the issues and a deal. Okay, well, tell me something

2:15.7

about those remedies and how the Justice

2:18.2

Department's perspective on remedies has evolved. Sure, so when it comes to remedies, this guide

...

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