In some cases, the federal antitrust agencies (either the Federal Trade Commission or the Department of Justice’s Antitrust Division) will only allow a merger to proceed if the parties are willing to divest certain assets. The agencies’ goal in requiring divestiture is to preserve the competitive landscape. Although more common in transactions that are national in scope, divestitures may become more useful in smaller local transactions if the parties have multiple business lines, where only one business line creates the competitive concern.
Parties who are involved in a transaction where divestiture may be required and parties that may want to acquire a divested asset—such as a physician group or ambulatory surgery center—may want to review the divestiture guidance provided by the Federal Trade Commission, “Negotiating Merger Remedies.” The guidance describes the divestiture process, what the Federal Trade Commission looks for in evaluating acceptable buyers, and the provisions and timing of the divestiture process.
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For additional information about the issues discussed above, or if you have any other antitrust concerns, please contact the Epstein Becker Green attorney who regularly handles your legal matters, or one of the authors of this Antitrust Byte: