This is part of a Hub and Spoke series on Antitrust Policy under Trump 2.0
As many anticipated, the era of litigating merger challenges, instead of settling through consent decrees, may have come to an end. Top enforcers under the second Trump Administration seem to be following through on their intimations that the moratorium has lifted on consent decrees as a remedy to problematic mergers. Since January, several settlements and consent decrees have been issued by both the FTC and DOJ. This is a clear turn away from using settlements and divestitures as a fix for mergers only in exceptional circumstances.
Top enforcers from the FTC and DOJ under the Biden administration (and even under the First Trump administration) expressed skepticism about the effectiveness of behavioral remedies and divestitures, and indicated early in their tenure that settlements failed to adequately preserve competition. According to them, consent decrees featuring divestiture of certain assets were meant to be the exception, not the rule. One of the only merger cases settled during the Biden administration was a settlement which occurred only after litigation over the merger was underway.
By contrast, several settlements have been announced already by the FTC and DOJ since new leadership under the Trump administration was put in place. In the settlement announcements, both DOJ AAG Gail Slater and FTC Chair Andrew Ferguson have indicated that these are meant to “secure[] enforceable commitments from the merging parties[] [and] provide transparency into the Antitrust Division’s efforts to resolve merger investigations,” a potential response to what were considered “shadow decrees”—situations where enforcers in the previous administration would allegedly work with merging parties to adjust the terms of their deal and resubmit HSR filings for approval, avoiding the need for judicial review. The agencies are looking “not to wield the antitrust scalpel as a bludgeon.”
This Administration’s approach will certainly be welcome to dealmakers and their lawyers. But this view is not universally shared. Previous enforcers preferred to litigate problematic mergers, contending that many settlements were ineffective at restoring competition long-term. As just one example, the FTC argued that a consent decree would be inappropriate to restore competition in the wake of the Kroger’s-Albertsons merger largely because prior divestitures from previous grocery deals had failed. This remains a risk even as the current administration looks to create more effective settlements. Keeping an eye on the results of different divestitures will be critical to protecting competition.
Below is a quick look at the settlements reached so far in 2025.
HPE/Juniper
The settlement of the HPE/Juniper merger litigation is the strongest signal yet that federal enforcers have adjusted their policies. Reached just over a week before trial was set to begin, the DOJ announced that parties had “achieved a result otherwise unavailable through litigation.” Details of the settlement have not yet been filed, but the DOJ shared that it includes divestiture of HPE’s Instant On business, as well as requiring an auction to license Juniper’s AI Ops for Mist source code.
Omnicom Group/The Interpublic Group
The FTC’s consent decree for the third- and fourth- largest media buying advertising agencies in the US focuses on behavioral remedies rather than structural. The FTC allowed the merger to proceed provided that the two advertisers agree not to rely on “exclusion lists” or means of differentiating between content based on political or ideological viewpoints that are expressed. The FTC alleged that collusion between media buying groups was occurring through a Trade Association and that this consent decree will help avoid threats to “distort not only competition between ad agencies, but also public discussion and debate.” Chair Ferguson, a “free speech warrior,” has shared that the FTC is interested in investigating antitrust issues which intersect with the free expression of ideas, and this is certainly a reflection of that interest.
Safran/Collins Aerospace
The DOJ announced in June that it had reached a settlement with Safran and Collins Aerospace (owned by RTX) which included a required divestiture of Safran’s North American actuation business. Actuators are used on aircraft to manipulate the surface of the wings and tail, which assist with functionality like maintaining proper altitude. The settlement prevented the “recombination of assets” that were divested as part of a previous deal involving Collins Aerospace. Allowing those assets to return to Collins in a subsequent merger is the kind of outcome which drove the previous administration’s skepticism that consent decrees ultimately supported the goals of antitrust law.
Keysight/Spirent
A similar settlement was reached in the merger of Keysight Technologies, Inc. and Spirent Communications. The DOJ is requiring divestment of Spirent’s high-speed ethernet testing and network security testing, along with other business segments in order to support the finalization of the merger.
Alimentation Couche-Tard/Giant Eagle
Yet another settlement focused on divestiture, the FTC entered a consent decree related to Couche-Tard’s acquisition of several hundred gas stations from grocery store chain Giant Eagle. Couche-Tard will divest 35 gas stations to protect against higher fuel costs for consumers in Indiana, Ohio, and Pennsylvania.
