Long Road (Back) to Remedies: U.S. Agencies Re-embrace Negotiated Divestitures in M&A

In this piece, authors Thomas A. McGrath, Antonia Sherman, John Eichlin, and Ben Bauer (Linklaters) look into a significant shift in U.S. antitrust enforcement as the Department of Justice (DOJ) and Federal Trade Commission (FTC) return to formal merger settlements. After a period of opposition to divestiture-based remedies under the Biden Administration, both agencies recently approved transactions with structural remedies rather than pursuing litigation. This signals a return to a more traditional enforcement strategy where mergers may proceed if antitrust concerns are addressed through targeted divestitures. While a formal remedy policy is expected later this year, these settlements suggest a revived interest in practical, pro-competition resolutions that avoid costly legal battles.

The DOJ’s approval of Keysight’s acquisition of Spirent Communications, contingent on divesting specific product lines to VIAVI Solutions, demonstrates this new-old approach. Similarly, the FTC approved Synopsys’s $35 billion purchase of Ansys on the condition that the parties divest certain semiconductor design tools to Keysight Technologies. In both instances, agency leaders emphasized the benefits of consent decrees in preserving competition without stalling innovation or growth. FTC Chair Andrew Ferguson and DOJ representatives framed these settlements as mechanisms that allow business efficiencies and competitive dynamics to coexist, countering the prior administration’s skepticism toward post-merger remedies.

These cases also reflect a more flexible enforcement posture. Both involved product-line carve-outs, with the FTC even accepting a “mix-and-match” divestiture—an unusual approach where remedies include assets from both merging firms. Additionally, the agencies required “up-front buyers,” meaning divestiture purchasers were identified before approving the deals, a practice that had largely fallen out of favor under the prior FTC leadership. International cooperation also played a key role, with multiple global regulators coordinating with the U.S. agencies…

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