Davis Polk Discusses the Return of Antitrust Remedies in Merger Settlements

In this blog post, the team at Davis Polk discuss with CLS Blue Sky regarding the first merger enforcement settlements announced under the second Trump administration, marking a significant shift in antitrust policy. These actions by the FTC and DOJ indicate a renewed openness to structural remedies in merger enforcement—such as divestitures—contrasting with the Biden-era agencies’ general reluctance to negotiate remedies. While still skeptical of behavioral remedies, the FTC and DOJ under the current leadership appear more inclined to allow mergers to proceed with meaningful structural conditions, signaling a strategic pivot to balance enforcement efficiency with practical business considerations.

The FTC’s approval of Synopsys’s acquisition of Ansys required both companies to divest key overlapping software tools to maintain competition in markets for Electronic Design Automation (EDA) and Simulation & Analysis (S&A) products. Keysight Technologies, the designated buyer, will acquire Synopsys’s optical and photonic software tools as well as Ansys’s power consumption analysis tool. Meanwhile, Keysight, in its own pending acquisition of Spirent Communications, was required by the DOJ to divest Spirent’s businesses in high-speed ethernet, network security, and RF channel emulator testing to Viavi Solutions. These actions represent a notable departure from the prior administration’s aversion to remedies and a coordinated attempt to prevent competitive harm while preserving the procompetitive benefits of mergers.

Chair Ferguson’s accompanying statement emphasized that settlements—when well-designed—can conserve agency resources and avoid litigation while preserving market competition. He contrasted this approach with the Biden-era FTC’s tendency to block rather than fix problematic deals, warning that such rigidity might encourage merging parties to preemptively implement inadequate “fix-it-first” solutions. DOJ Assistant AG Slater echoed these sentiments, noting that structured consent decrees improve transparency and enforceability…

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