WHAT HAPPENED The Department of Justice Antitrust Division (DOJ) implemented new provisions in merger consent decrees that: Make it easier for DOJ to prove violations of a consent decree and hold parties in contempt; Allow DOJ to apply for an extension of the decree’s term if the court finds a violation; and Shift DOJ’s attorneys’ fees and costs for successful enforcement onto the parties. DOJ has implemented these provisions in four decrees to date1, and has communicated that it will require the same in future decrees. WHAT THIS MEANS For merger decrees, by reducing its burden of proof for decree violations, DOJ is shifting additional risk to parties for divestitures that do not go as planned. Willfulness is not a required element of civil contempt2, so the change to the burden of proof is significant. Parties will need to be sure to commit to realistic divestiture timelines and asset packages that will not present undue implementation challenges. For...

Continue Reading