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Kellie Kemp, Scott Sher, Dec 16, 2014
Antitrust regulators reviewing technology mergers frequently are confronted with complicated issues related to remedies. Indeed, merger remedies in technology markets often involve regulation of the merging parties’ post-merger conduct as opposed to so-called “structural” remedies such as the sale of physical assets or intellectual property. Although structural relief historically has been the preferred remedy to resolve anticompetitive mergers, non-structural relief may be more appropriate in many technology mergers that are vertical in nature, involve transfers of intellectual property rather than accumulation of physical assets, or raise complex network effects issues.
Remedies involving non-technology mergers often are easier to administer than those in technology mergers, as the divestment of an “autonomous, on-going business unit” often is a relatively straightforward task in non-technology industries: an airline merger can be resolved with the divestiture of airport slots; a retail or supermarket merger can be resolved with the divestiture of brick-and-mortar locations in a geographic region. These are options not always available as remedies in technology company mergers.
Confronted with difficult questions, antitrust agencies around the world are dealing with remedies in technology markets differently. This paper explores the varying approaches to technology remedies taken by the U.S. antitrust agencies, the European Commission, and MOFCOM in China, using case studies within each jurisdiction to explore how general principles play out in actual technology market mergers.