Antitrust Litigation Update - October 2025

Structural Remedies Making a Comeback in Merger Enforcement

Structural remedies are making a comeback in US merger enforcement actions.  Under the Trump Administration, both the Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC) have resolved high-profile merger challenges and investigations through divestitures and similar remedies rather than seeking to outright block transactions in court.  This approach marks a notable shift from the Biden Administration’s aggressive approach to merger enforcement, often litigating cases through trial.

For example, in May of this year, the FTC approved the merger of Synopsys, Inc. and Ansys, Inc., two companies that offer software tools used to design semiconductors and related high-tech products.  See Complaint, In re Synopsys, Inc. and Ansys, Inc., Fed. Trade Comm’n (May 28, 2025).  The FTC alleged that the proposed transaction would substantially lessen competition in violation of Section 7 of the Clayton Act in global markets for optical software tools, photonic software tools, and register transfer level power consumption tools.  Id.  But instead of litigating the matter to obtain an injunction, the FTC entered a consent order with the merging parties, allowing the transaction to proceed on the condition that the parties divest assets related to the three markets for which it had competitive concerns.  See Decision and Order, In re Synopsys, Inc. and Ansys, Inc., Fed. Trade Comm’n (May 28, 2025).  In a statement accompanying the settlement, the FTC Chairman Andrew Ferguson explained his approach to structural remedies: “A settlement may be the best way to protect [merger] competition in some cases for two reasons.  First, settlement can temper the potentially over-inclusive effects of an injunction blocking an entire merger. . . . Second, settlement maximizes the Commission’s finite enforcement resources.”  Statement of Chairman Andrew N. Ferguson In the Matter of Synopsys, Inc. / Ansys, Inc., Fed. Trade Comm’n (May 28, 2025).

Likewise, the DOJ recently approved two mergers on the condition that the merging parties divest assets.  Most notably, in June, the DOJ abandoned a lawsuit seeking to enjoin the merger of Hewlett Packard Enterprise Co. (HPE) and Juniper Networks Inc.  The case, which had been set to go to trial in early July, raised concerns that the merger could reduce competition in the market for certain enterprise network solutions.  See Complaint, United States v. HPE & Juniper Networks, No. 25-cv-00951 (N.D. Cal. Jan. 30, 2025).  But just weeks before trial was set to begin, the DOJ settled, approving the transaction so long as HPE divested certain enterprise network assets to a DOJ-approved buyer and the combined firm agree to provide licenses to related software tools.  See Proposed Final Judgment, No. 25-cv-00951 (N.D. Cal. June 27, 2025).  A press release accompanying the agreement noted that the settlement achieves “a result otherwise unavailable through litigation”  Justice Department Requires Divestitures and Licensing Commitments in HPE’s Acquisition of Juniper Networks, Dep’t Of Just. (June 28, 2025).

In another case, the DOJ approved the merger of Keysight Technologies Inc. and Spirent Communications Plc. after the parties agreed to a divestiture without going to court.  Specifically, the DOJ raised concerns that the transaction could lessen competition in US markets for high-speed internet testing equipment, network security testing equipment, and certain wireless network testing devices.  See Proposed Final Judgment, No. 25-cv-01734 (D.D.C. June 2, 2025).  As with the matters above, the DOJ’s approval of the transaction was contingent on the parties’ agreement to divest assets related to the relevant markets.  Id.  In a statement about the settlement, the DOJ’s Antitrust chief, Assistant Attorney General (AAG) Abigail Slater stated that the “structural solution preserves competition for key testing equipment” by “secur[ing] enforceable commitments from the merging parties” and while “provid[ing] transparency into the Antitrust Division’s efforts to resolve merger investigations.”  Justice Department Requires Keysight to Divest Assets to Proceed with Spirent Acquisition, Dep’t of Just. (June 28, 2025).

These developments may be a welcome sign to companies considering significant mergers or acquisitions in the near term.  To the extent companies are willing to divest assets related to areas of competitive concern, these cases suggest that key US regulators may be willing to approve transactions without costly and time-consuming litigation.

However, merging parties should still proceed with caution.  Both AAG Slater and the FTC Chairman Ferguson have emphasized in public statements that they will only approve merger settlements with meaningful divestitures that adequately resolve competitive concerns.  Ferguson stated that the FTC is “clear-eyed about the dangers of inadequate or unworkable settlements” noting that “[t]he object of settlement is to protect competition as fully as would successful litigation without the expense and risk of litigation”  Statement of Chairman Andrew N. Ferguson in the Matter of Synopsys, Inc. / Ansys, Inc., Fed. Trade Comm’n (May 28, 2025).  He emphasized that settlements should not be used “to paper over an anticompetitive transaction”  Id.  And in response to questioning from the Senate Judiciary Committee, Slater noted that any divestiture remedy in a merger case must be “effective and robust”  Questions for the Record, Ms. Abigail Slater, Senate Jud. Comm. (Feb. 12, 2025).