Litigating The Fix In Merger Cases: Some Lessons And Continuing Questions Following FTC v. GTCR

On November 10, Judge Jeffrey Cummings of the Northern District of Illinois denied the Federal Trade Commission's (FTC) request for a preliminary injunction to prohibit the closing of GTCR's acquisition of Surmodics, giving GTCR control over the two largest suppliers of hydrophilic coatings for medical devices like catheters and surgical guidewires. This was the first fully litigated merger case of the second Trump Administration and has particularly important implications regarding how this administration will "litigate the fix" in merger cases going forward.¹

This note discusses both implications of FTC v. GTCR and some broader issues for parties that may be seeking to resolve agency concerns about a merger through a remedy.

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The author of this note, Susan Musser, has deep experience with both the FTC and the DOJ Antitrust Division, having served at both agencies. She recently joined WilmerHale after spending most of her career in government, first as trial attorney at the Antitrust Division and, more recently, as Chief Trial Counsel and Acting Bureau Director at the FTC. She draws on her experience litigating the fix in merger challenges across administrations, including FTC v. Illumina et al., FTC v. Kroger et al., FTC v. Amgen et al. and FTC v. ICE/Black Knight, but this note is based only on public information.

A (Brief) Primer on Merger Remedies

Throughout the Biden Administration, both FTC Chair Lina Khan and Assistant Attorney General (AAG) Jonathan Kanter said they were skeptical of accepting remedies to address competitive concerns in merger cases and were inclined to litigate rather than settle. As then-AAG Kanter explained, "[W]hen the division concludes that merger is likely to lessen competition, in most situations [the DOJ] should seek a simple injunction to block the transaction" as "the surest way to preserve competition."³While neither agency foreclosed remedies altogether, consent decrees in merger cases reached a historic low during the Biden Administration.⁴By contrast, at the beginning of their tenures, current FTC Chairman Andrew Ferguson and AAG Gail Slater announced that their agencies were open to resolving merger cases through remedies.⁵ The antitrust agencies during the Trump Administration have so far accepted around six⁶settlements in merger cases involving both divestitures and behavioral remedies.⁷

But it is also important to recognize what has not changed from the Biden Administration. The FTC, at least, has remained skeptical about partial divestitures and continued to take aggressive positions in court regarding the legal standard for evaluating proposed fix-it-first remedies.

Partial Divestitures

While neither agency has taken the position that it will never agree to resolve merger cases based on divestitures of less than complete, standalone businesses or business lines, both have historically been skeptical of partial divestitures and subjected them to especially searching scrutiny. For example, the Antitrust Division's 2020 Remedy Manual⁸explained that it had "a preference for requiring the divestiture of an existing standalone business, because it has demonstrated success competing in the relevant market."⁹The agencies, moreover, have said that they will consider partial divestitures only where, as DOJ has put it, "the evidence clearly demonstrates that the purchaser does not want or need some of the entity's assets, for example because the purchaser already is in the possession of, or can readily obtain [necessary assets] in a competitive market."¹⁰The FTC has similarly explained that if "the proposed package of assets does not comprise a separate business unit that has operated autonomously in the past, the staff is unlikely to recommend that the Commission accept such a proposal until the parties show that the package includes all necessary components, or that those components are otherwise available to a prospective buyer."¹¹

While neither agency has yet announced a formal remedy policy during the Trump Administration, Chairman Ferguson has expressed a particularly skeptical view regarding partial divestitures. He has said that the FTC should not "accept a structural remedy unless it involves the sale of a standalone or discrete business, or something very close to it, along with all tangible and intangible assets necessary (1) to make that line of business viable, (2) to give the divestiture buyer the incentive and ability to compete vigorously against the merged firm, and (3) to eliminate to the extent possible any ongoing entanglements between the divested business and the merged firm."¹²

Litigating the "Fix"

During the Biden Administration, it became increasingly common for defendants to propose a remedy outside the consent decree process, either before or during litigation. This is often referred to as "fixing it first." Also during the last administration, the agencies took an aggressive legal stance when litigating these (often) late-breaking proposals. For instance, the FTC argued that defendants proposing to "fix it first" must prove that the remedy would fully "restore competition" lost as a result of the merger.¹³The commission has argued against the lower standard that the court adopted in FTC v. Illumina, requiring that the proposed remedy make "the merger's effect such that it was no longer likely to substantially lessen competition" but not that the remedy fully replace all competition lost as a result of the merger.¹⁴

In addition to taking an aggressive stance regarding the remedy's legal standard, the FTC took other aggressive positions in litigation. For example, on at least one occasion the FTC even sought to exclude evidence regarding a proposed remedy altogether, arguing that the issue of remedies was inappropriate at the preliminary injunction stage.¹⁵The agencies have not consistently taken that position, however, and no court has ever accepted it.

In GTCR, the FTC took a similar position. In March 2025, the FTC issued a complaint in the Northern District of Illinois that asked the court to temporarily enjoin GTCR's acquisition of Surmodics.¹⁶Months after the complaint was filed, defendants proposed to fix the merger by divesting assets from Biocoat, Inc., in which GTCR held a majority interest.¹⁷Claiming that the remedy proposal came too late, the FTC moved in limine to exclude evidence of defendants' proposed remedy or, in the alternative, exclude evidence of changes in the remedy proposal that might come after discovery.¹⁸Cummings refused to exclude all evidence of the remedy but did agree to exclude certain post-discovery evidence.¹⁹

Cummings then ordered the parties to engage in settlement discussions and ultimately mediated discussions between the two sides.²⁰The parties were unable to reach an agreement. Forced to litigate the fix, the FTC argued in part that the proposed remedy must completely restore competition lost through the merger, urging the court to reject the lower Illumina standard.²¹The FTC argued, moreover, that due to the partial nature of the divestiture, the proposed divestiture buyer neither had the incentive to replicate the pre-merger competitive intensity nor the ability to do so.²⁰

The Court's Decision in GTCR

The court rejected the FTC's arguments in an oral opinion denying a preliminary injunction. First, disagreeing with the FTC's proposed legal standard, the court found "that defendants are only required to show that the proposed divestiture sufficiently mitigated the merger's effect, such that it was no longer likely to substantially lessen competition. The defendants are not required to show that the divestiture would negate the anti-competitive effects of the merger entirely."²³ Second, the court rejected the proposition that the proposed remedy was insufficient merely because it did not involve divestiture of a complete business but rather evaluated the proposed divestiture scope in the context of the proposed divestiture buyer's existing capabilities. The court said, "Although this is a partial and not a full divestiture, the evidence reflects that the divested assets, information, employees, facility and equipment will fill an important capability gap in Integer's [the divestiture buyer's] business; and, with the addition of the assets, personnel, information and equipment that will come by virtue of the divestiture, it will allow Integer to serve as a one stop shop for the manufacturing and application of hydrophilic coatings."²⁴Significantly, Cummings credited the testimony of the divestiture buyer that it had everything that it needed to be successful.²⁵

Implications

Cummings's decision comes at a critical time when the agencies' new leadership is still developing remedy policies and practices for engaging with parties that are seeking to resolve merger cases through settlements. While it remains to be seen whether the FTC's loss in GTCR will cause the agencies to change their positions regarding partial divestitures or fix-it-first remedies, the decision is important for two reasons. First, it suggests that courts may apply a more lenient standard to evaluate proposed fix-it-first remedies than the agencies have been advocating. Second, it shows that courts may well be less skeptical than the agencies regarding partial divestitures. Instead, they may evaluate the proposed package of divested assets in the context of the proposed divestiture buyer's existing capabilities to determine whether it meets the legal standard—without any particular bias against partial divestitures.

I expect the agencies will continue to evaluate proposed remedies to ensure that they can be "confident" that a partial (or any other type of) divestiture will replace competition lost through the merger. But the FTC commissioners have also recognized that litigating the fix "relegates [the FTC's] judgment about what constitutes an acceptable remedy to the parties themselves and the judiciary" and imposes significant litigation risks and costs.²⁶As a practical matter, GTCR and other recent cases where the agencies have lost on the remedy issue may result in the agencies taking a more flexible approach to remedy negotiations to obtain a consent decree and avoid the risks and costs of litigation.

Going forward, parties contemplating a merger should consider the following:

• Given the additional complexities and risks partial divestitures can pose, agencies will likely continue to seek to scrutinize particularly closely partial divestiture proposals. Parties that wish to avoid the risks, delays and costs of merger litigation are well advised not to squeeze the agencies, notwithstanding that merging parties have had recent success litigating the fix. That said, recent agency losses on remedy issues in GTCR and other cases are putting pressure on the agencies to enter consent decrees rather than litigate. Parties should consider engaging with the agencies early about proposed remedies, to take advantage of what may be more receptive and flexible agency approaches.
• Insofar as litigation is inevitable, parties should anticipate that the agencies may continue to take aggressive positions regarding the legal standard for evaluating proposed remedies and will leverage all available evidentiary tools to favorably shape the evidentiary scope and themes of any litigation. Accordingly, parties should be looking for opportunities to educate the judge early and conduct discovery with an eye toward defending against potential motions in limine.

Footnotes

1 The FTC concluded its second merger hearing of this administration—FTC v. Edwards—last week in the District of Columbia and is awaiting a verdict in that case.

2 Statement of Chairman Andrew N. Ferguson Joined by Commissioner Melissa Holyoak and Commissioner Mark R. Meador In the Matter of Synopsys, Inc. / Ansys, Inc. Matter Number 2410059, at 2 (May 28, 2025),available athttps://www.ftc.gov/system/files/ftc_gov/pdf/synopsys-ansys-ferguson-statement-joined-by-holyoak-meador.pdf ("In due course, the Commission will publish a policy statement on its understanding of the role of remedies.").

3 Jonathan Kanter, Assistant Att'y Gen., Antitrust Div., Dep't of Just., Remarks to the New York State Bar Association Antitrust Section (Jan. 24, 2022),available athttps://www.justice.gov/archives/opa/speech/assistant-attorney-general-jonathan-kanter-antitrust-division-delivers-remarks-new-york.

4 Ryan Quillian & Pegah Nabili, "Three years running: Merger enforcement activity continues at historically low levels according to the agencies' most recent HSR report,"Westlaw Today(Oct. 23, 2024), https://www.cov.com/-/media/files/corporate/publications/2024/10/three-years-running-merger-enforcement-activity-continues-at-historically-low-levels-according-to-the-agencies-most-recent-hsr-report.pdf; "Competition Enforcement Database," Fed. Trade Comm'n, https://www.ftc.gov/competition-enforcement-database (last accessed Nov. 25, 2025).

5 Bill Rinner, Deputy Assistant Att'y Gen., Antitrust Div., Dep't of Just., Remarks to the George Washington University Competition and Innovation Lab Conference Regarding Merger Review and Enforcement (June 4, 2025),available athttps://www.justice.gov/opa/speech/daag-bill-rinner-delivers-remarks-george-washington-university-competition-and ("With our commitment to robust enforcement in mind, I nevertheless would underscore that we do not view dealmaking with inherent suspicion. There is noper serule against mergers or transactions. Our primary mission is civil merger enforcement against the handful of mergers that are problematic, not civil merger deterrence generally."); Statement of Chairman Andrew N. Ferguson,supranote 2.

6 One of these six—HPE/Juniper—is still pending review under the Tunney Act. While in the past courts' inquiry under the Tunney Act has been limited, the court inHPE/Juniperrecently granted a motion to intervene that 13 states filed to allow them to "participate directly in the court's proceedings to evaluate whether that settlement is in the public interest." Press Release, Rob Bonta, Cal. Att'y Gen., Attorney General Bonta Secures Court Decision Allowing States to Participate in Evaluation of Allegedly Corrupt HPE/Juniper Merger (Nov. 18, 2025),available athttps://oag.ca.gov/news/press-releases/attorney-general-bonta-secures-court-decision-allowing-states-participate.

7 Agreement Containing Consent Orders,In the Matter of Synopsys, Inc. / Ansys, Inc.,FTC No. 2410059 (May 28, 2025),available athttps://www.ftc.gov/system/files/ftc_gov/pdf/2410059c4820synopsysansysacco.pdf; Press Release, Dep't of Just., Justice Department Requires Broad Divestitures to Resolve Challenge to UnitedHealth's Acquisition of Amedisys (Aug. 7, 2025),available athttps://www.justice.gov/opa/pr/justice-department-requires-broad-divestitures-resolve-challenge-unitedhealths-acquisition; Press Release, Dep't of Just., Justice Department Requires Divestitures and Licensing Commitments in HPE's Acquisition of Juniper Networks (June 28, 2025),available athttps://www.justice.gov/opa/pr/justice-department-requires-divestitures-and-licensing-commitments-hpes-acquisition-juniper; Press Release, Dep't of Just., Justice Department Requires Safran to Divest Assets to Proceed with Acquisition of Raytheon Assets (June 17, 2025),available athttps://www.justice.gov/opa/pr/justice-department-requires-safran-divest-assets-proceed-acquisition-raytheon-assets; Press Release, Fed. Trade Comm'n, FTC Alters Final Consent Order in Response to Public Comments, Preventing Coordination in Global Advertising Merger (Sept. 26, 2025),available athttps://www.ftc.gov/news-events/news/press-releases/2025/09/ftc-alters-final-consent-order-response-public-comments-preventing-coordination-global-advertising; Press Release, Fed. Trade Comm'n, FTC Takes Action to Prevent Anticompetitive Effects of Retail Gas Station Deal (June 26, 2025),available athttps://www.ftc.gov/news-events/news/press-releases/2025/06/ftc-takes-action-prevent-anticompetitive-effects-retail-gas-station-deal .

8 The Antitrust Division withdrew its remedy manual in 2022.

9 Antitrust Div., Dep't of Just.,Merger Remedies Manual8 (Sept. 2020), https://www.justice.gov/atr/page/file/1312416/dl.

10 Id.at 10.

11 Fed. Trade Comm'n,Negotiating Merger Remedies: Statement of the Bureau of Competition of the Federal Trade Commission6 (Jan. 2012), https://www.ftc.gov/system/files/attachments/negotiating-merger-remedies/merger-remediesstmt.pdf (emphasis omitted).

12 Statement of Chairman Andrew N. Ferguson,supranote 2, at 7.

13 Supplemental Pretrial Brief of Plaintiff United States of America,U.S. v. Assa Abloy, 1:22-cv-02791(D.D.C. Mar. 27, 2023), Dkt. No. 102.See also,FTC v. Sysco Corp., 113 F. Supp. 3d 1, 72 (D.D.C. 2015);United States v. Aetna Inc., 240 F. Supp. 3d 1, 60 (D.D.C. 2017).

14 Illumina, Inc. v. FTC, 88 F.4th 1036, 1058–59 (5th Cir. 2023) (emphasis omitted);see also United States v. UnitedHealth Group, 630 F. Supp. 3d 118, 133 (D.D.C. 2022) ("As the Government would have it, UHG must prove that the divestiture will maintain the same level of competition that existed in the pre-merger market. But the text of Section 7 is concerned only with mergers that 'substantially . . . lessen competition.' By requiring that UHG prove that the divestiture would preserve exactly the same level of competition that existed before the merger, the Government's proposed standard would effectively erase the word 'substantially' from Section 7.") (citation omitted).

15 See, e.g.,FTC's Initial Proposed Findings of Fact and Conclusions of Law ¶ 125,FTC v. Microsoft Corp., No. 3:23-cv-2880 (N.D. Cal. June 22, 2023), Dkt. No. 175 ("The 'narrow' purpose of a § 13(b) proceeding does not extend even to the initial question of liability, let alone to the subsequent question of what remedy might be appropriate if the administrative proceeding ultimately yields a finding of liability.") (internal citations omitted).

16 Complaint,FTC v. GTCR BC Holdings, LLC, No. 1:25-cv-02391 (N.D. Ill. Mar. 7, 2025), Dkt. No. 22.

17 Plaintiffs' Reply in Support of Their Motion for a Preliminary Injunction at 1,FTC v. GTCR BC Holdings, LLC, No. 1:25-cv-02391 (N.D. Ill. Aug. 21, 2025), Dkt. No. 389.

18 Plaintiffs' Motion to Exclude Evidence and Arguments Regarding Defendants' Proposed Remedy at 1, 6,FTC v. GTCR BC Holdings, LLC, No. 1:25-cv-02391 (N.D. Ill. Aug. 12, 2025), Dkt. No. 242.

19 Minute Order,FTC v. GTCR BC Holdings, LLC, No. 1:25-cv-02391 (N.D. Ill. Aug. 14, 2025), Dkt. No. 225.

20 Id.; Minute Order,FTC v. GTCR BC Holdings, LLC, No. 1:25-cv-02391 (N.D. Ill. Aug. 16, 2025), Dkt. No. 355.

21 Plaintiffs' Reply in Support of their Motion for a Preliminary Injunction,supranote 18, at 4, 29 (internal citations omitted). Plaintiffs also argued, however, that they would prevail under either standard.

22 Id.

23 Tr. of Proceedings at 41:5–10,FTC v. GTCR BC Holdings, LLC, 1:25-cv-02391 (N.D. Ill. Nov. 11, 2025), Dkt. No. 451.

24 Id.at 43:15–22.

25 Id.at 48:22–49:9.

26 Statement of Chairman Andrew N. Ferguson,supranote 2, at 6.

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