Fix-it-first

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Dimple Belousson

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Aug 3, 2024, 4:04:18 PM8/3/24

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Notwithstanding these potential benefits, a fix-it-first strategy can be difficult to execute. Accordingly, parties contemplating a merger that may raise antitrust concerns should carefully assess the need for and the potential advantages and disadvantages of pursuing a fix-it-first strategy at the earliest stages of deal consideration. Among other things, parties should analyze carefully:

Assistant Attorney General Jonathan Kanter of the Antitrust Division Delivers Remarks to the New York State Bar Association Antitrust Section, US Department of Justice (Jan. 24, 2022), -attorney-general-jonathan-kanter-antitrust-division-delivers-remarks-new-york.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

That was the question posed to non-governmental association representatives during the Highway Stakeholders: Diverse perspectives on the future of highways panel discussion, part of the Transport Futures webinar series.

Keeping on the theme of fix-it-first, Phil Pothen of Environmental Defence said although it seems like the panel members had different views, he said there was some consensus on finding a way to move traffic onto Highway 407.

Timing constraints may not be the only obstacle to fix-it-first remedies. Even where timing is not at issue, the Commission can be reluctant to allow a fix-it-first remedy. In Investindustrial/Black Diamond/Polynt/Reichhold a remedy buyer was identified that tested positively in the market test of the initial commitments, and a purchaser approval request followed shortly after those commitments were submitted.17 Instead of incorporating purchaser approval into the clearance decision, the Commission issued a separate purchaser approval decision the next working day. Although the Commission had conducted its assessment of the remedy buyer before the clearance decision, it still chose not to allow a fix-it-first remedy. As noted above, this reluctance may stem from the reduced control the Commission has over the implementation of the divestment in a fix-it-first case.

Anna Lyle-Smythe and John Boyce are both partners at Slaughter and May in Brussels, advising clients on mergers, cartels and other behavioural matters, State aid and market investigations. They deal extensively with the European Commission and the UK competition authorities, as well as other competition agencies around the world.

Anna and John are contributing authors to Bellamy & Child: European Union Law of Competition 8th ed. (Chapter 8: Merger Control). They were assisted in the preparation of this article by Peaches Stanforth, trainee solicitor.