DOJ Signals a Major Shift to its Antitrust Merger Review and Remedies Practice

The Department of Justice (“DOJ”) recently signaled a possible shift in its antitrust merger review and remedies practice, moving away from a willingness to allow transactions to proceed through a divesture process. In his January 24, 2022 speech for the New York Bar Association’s Antitrust Law Section, Jonathan Kanter, the new assistant attorney general for the DOJ’s Antitrust Division, announced his concerns that the often-used settlement and divesture practice “miss[ed] the mark” in remedying antitrust concerns.¹ Kanter argued that the best way to preserve competition will often be to seek an injunction to block a merger rather than to allow the merger to proceed with a divestiture. This announcement potentially marks a dramatic change in merger relief and is another step towards the Biden administration’s goal of heightened antitrust scrutiny and enforcement.