Conduct Remedies, With 2020 Hindsight: Have We Learned Anything in the Last Decade?

Ten years ago the U.S. antitrust agencies began using conduct remedies more frequently and more expansively than ever before. Research and experience, however, highlighted the limitations of such remedies, and so more recently the agencies have restated their determination to avoid the use of conduct remedies wherever possible and to strengthen remedies policy generally. Despite those statements, the agencies have in fact continued to rely on conduct remedies and indeed further expanded their use in ever more problematic ways. Three examples discussed in this article are the recent amendment to the original Ticketmaster-Live Nation settlement, the merger of Staples and Essendant, and the Sprint/T-Mobile merger. The conclusion of this review is that little appears to have been learned about the weaknesses of conduct remedies over the past decade.

By John Kwoka¹

I. INTRODUCTION

A decade ago, U.S. antitrust policy embarked on an experiment in expansive use of conduct remedies for mergers. Several major cases were settled with agreements that the merged firms—as a condition for approval of their mergers—would not engage in specific anticompetitive actions. In 2011 the Antitrust Division of the Justice Department issued a revised Remedies Guide that indicated greater receptivity to conduct remedies than in an earlier version of the Guide.

But a growing body of experience and research was finding that conduct remedies were hard to w