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US: Antitrust chief: ‘behavioral remedies are the wolf of regulation dressed in the sheep’s clothing of a behavioral decree.”

 |  November 16, 2017

The head of the Department of Justice’s Antitrust Division on Thursday, November 16, signaled a change in approach to antitrust under his leadership by asking companies to divest assets when necessary in order for major merger deals to be approved.

That’s a shift from the Obama administration, which leaned more heavily on consent decrees that asked merged companies to cease antitrust behavior, but without ensuring compliance through divestment.

“I expect to cut back on the number of long-term consent decrees we have in place and to return to the preferred focus on structural relief to remedy mergers that violate the law and harm consumers,” Makan Delrahim said Thursday to the American Bar Association’s fall conference in Washington.

A consent decree is considered a behavioral remedy, a pledge by the merging companies to avoid anti-trust behavior by adhering to certain best practices.

Under Obama, the division leaned on behavioral remedies, as evident in major merger cases such as Ticketmaster and Live Nation in 2010 and Comcast and NBCU in 2011. Examples of behavioral remedies in those cases included licensing, non-discrimination requirements, and firewalls.

Behavioral remedies are hard to enforce, but structural remedies — the divesting of assets by the merging companies — are more likely to ensure compliance, Delrahim said.

Delrahim’s remarks were made just days after reports surfaced that the Trump administration was pushing Time Warner to sell off Turner Broadcasting, the parent company of CNN, as a condition of merging with AT&T.

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