Jonathan Kanter, the confirmed Assistant Attorney General of the Antitrust Division of the U.S. Department of Justice (hereinafter “DOJ”) has signalled that enforcement changes are coming in the U.S. competition policy. Recently, Kanter gave a speech before the New York Bar Association at which he outlined his vision for enforcement and the need to update antitrust perspectives. In recognition of the new era, the DOJ and the U.S. Federal Trade Commission have initiated a review of both the Merger Guidelines and Vertical Conduct Guidelines. These revisions are expected to significantly alter DOJ’s and the FTC’s approach to mergers.

In his speech, Kanter expressed reservations relating to prior antitrust settlements that permitted transactions to go forward with divestitures of overlapping operations and/or conduct-based prohibitions.  Each of these approaches, in Kanter’s view, were questionable in effectiveness.  Kanter may apply a simple view in future enforcement actions – if DOJ seeks to block a merger, the merger should not happen under any conditions. Kanter made clear he is not a big fan of divestitures since he questioned whether the divested assets were ever utilized to increase or restore a particular level of competition that existed in the market prior to the merger. The DOJ’s new approach to mergers issues raises real risks to companies, particularly those operating in concentrated markets in the U.S., especially where a market leader has a dominant market share and influence according to Michael Volkov as he shares in a recently published article at Corporate Compliance Insights.