Series
Blogs
Long Road (Back) to Remedies: U.S. Agencies Re-embrace Negotiated Divestitures in M&A
Long Road (Back) to Remedies: U.S. Agencies Re-embrace Negotiated Divestitures in M&A
4 June 2025
Series
Blogs
4 June 2025
After an extended hiatus, the U.S. antitrust agencies are back in the formal settlement business. Within days of each other, the DOJ and FTC each cleared its first transaction subject to conditions under the new Administration. These conditional clearances mark a return to former merger enforcement policy: allowing transactions to close with divestitures and without litigation (something both agencies generally declined to do during the Biden Administration). Pending the release of a formal remedy policy promised for later this year, the agencies are signalling a more practical approach to divestitures in line with traditional remedy policies.
The settlements entered into by the DOJ and FTC offer a similar roadmap for targeted product divestitures. On 2 June, the DOJ cleared Keysight’s takeover of Spirent Communications plc, subject to divesting Spirent’s high-speed ethernet, network security and channel emulation business lines to VIAVI Solutions Inc. In a press release announcing the settlement, the DOJ stressed the virtues of the consent process—resolving antitrust concerns by “secur[ing] enforceable commitments from the merging parties” that protect competition, promote innovation, and allow “American companies to maintain global leadership.” New Division leadership clearly sees settlement as an effective tool to address competitive harms while enabling pro-growth transactions to proceed.
Just days earlier, the FTC approved Synopsis, Inc.’s $35 billion acquisition of Ansys, Inc., requiring the parties to divest three semiconductor design software tools to Keysight Technologies, Inc. In a statement accompanying the settlement, FTC Chair Andrew Ferguson indicated a renewed willingness to enter into consent decrees when parties offer robust structural remedies. Sounding similar notes as DOJ, Chair Ferguson stressed that settlement allows a transaction’s procompetitive benefits to be realized and “avoid[s] bogging down innovation and interfering with the forces of a free and competitive market” through needless litigation.
For dealmakers mapping out potential remedy options, there are a few common themes:
The FTC and DOJ press releases highlight that negotiated settlements allow a transaction’s procompetitive benefits to be realized while addressing anticompetitive concerns and conserving agency resources (by avoiding litigation). This is a clear break from both agencies’ stances against formal remedies under the Biden Administration. FTC Chair Andrew Ferguson explained that behavioral remedies (e.g., non-discrimination or access commitments) will be disfavored, but still might be possible to address agency concerns. Echoing similar sentiments, DOJ Assistant Attorney General Gail Slater has previously stated that “antitrust is a scalpel”, and merging parties should expect remedies requiring “targeted, incisive cuts” of any areas raising competitive concern.
The FTC statement casts M&A as procompetitive by creating incentives for start-ups to innovate in order to position themselves to be acquired by bigger investors (because not every good idea becomes an IPO). This departs from prior agency views that “killer acquisitions” were a leading cause of anticompetitive harm.
It may be too soon to say that “everything old is new again,” but these early settlements imply a return to traditional remedies policies of the pre-Biden era and greater convergence with other global authorities. As policy pronouncements (and presumably, more consent decrees) take shape, the potential exit ramps for dealmakers in securing clearance will likely become clearer.