Yes We Can, But Should We? Merger Remedies During the First Obama Administration

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Keith Klovers, Christine Wilson, Dec 16, 2014

During the 2008 Presidential election, Barack Obama promised to “reinvigorate” antitrust enforcement in the United States. Candidate Obama focused in part on merger enforcement, an area in which he promised to “step up review of merger activity and take effective action to stop or restructure those mergers that are likely to harm consumer welfare.” Candidate Obama also argued, “we probably have to update how we approach antitrust to figure out what is truly anticompetitive behavior.” Following his election, observers predicted a significant change of position at both the Department of Justice Antitrust Division and the Federal Trade Commission.

Subsequent merger cases suggest that the Agencies revised their approach, sometimes significantly. These changes were particularly evident in the realm of merger remedies. During President Obama’s first term, the Agencies—particularly the DOJ—imposed a string of novel merger remedies, including: (i) compulsory innovation (Google-ITA); (ii) compulsory FRAND licensing of a product that did not yet exist (also Google-ITA); (iii) the imposition of divestitures creating two new competitors to replace the loss of one competitor (Ticketmaster-Live Nation); (iv) prospective mandates on the level of employment and output (Gazette-Daily Mail); (v) long-term bans on serving specific current clients

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