DOJ Carries Through on Revitalization of Merger Remedies

Days after the Federal Trade Commission (FTC) reached its first divestiture settlement of the new Trump administration, the U.S. Department of Justice Antitrust Division (DOJ or the Division) followed through on Assistant Attorney General Abigail Slater’s (AAG Slater) prior comments by announcing its first remedy of the new Trump Administration. During her confirmation hearing, AAG Slater noted that under her leadership the Division would “take a different approach than the prior Antitrust Division on settlements in merger cases where effective and robust structural remedies can be implemented without excessively burdening the Antitrust Division’s resources.”¹

The DOJ will require Keysight Technologies, Inc. (Keysight) and Spirent Communications plc (Spirent) (together, the parties) to divest certain assets to resolve antitrust concerns surrounding the parties’ $1.5 billion merger.² The Proposed Settlement is the first instance of the Division clearing a merger subject to a remedy under the new Trump Administration and the first DOJ pre-litigation settlement since 2023.³ Notably, the Proposed Settlement here closely mirrors the FTC’s recent Proposed Order that would remedy concerns related to the Synopsys, Inc. (Synopsys) and Ansys, Inc. (Ansys) merger—signaling antitrust enforcers alignment on the use of remedies as an important merger enforcement tool.

The Division’s willingness to revive pre-litigation merger remedies stands in stark contrast to the practice under the Biden Administration, which strongly disfavored remedies, instead preferring to attempt to enjoin deals via litigation in lieu of structural settlement. The move by both the DOJ and the FTC to address competitive concerns about a merger through divestiture confirms the Division is committed to working with the parties to a merger to find a structural solution that resolves the anticompetitive concerns presented by a merger while preserving its procompetitive benefits. What is perhaps most notable about the DOJ remedy here is how similar it is to those few the Biden Administration negotiated. This suggests that while the Division is open to entertaining remedies, parties should not expect significant deviation in terms found in prior DOJ Proposed Settlements.

Proposed Settlement Addresses Overlaps in Communications Testing and Measurement Equipment

The DOJ alleges in its complaint filed in the U.S. District Court for the District of Columbia that the parties are dominant in three relevant markets where they compete closely—high-speed ethernet testing, network security testing, and Radio Frequency (RF) channel emulators—where the parties combined market shares in each alleged market range from 50 percent to 85 percent.⁴ According to the complaint “equipment manufacturers, communications network operators, and large cloud computing providers purchase and use this specialized testing equipment to ensure their products and networks operate effectively and securely under normal conditions, and to prepare them to withstand the real-world strain of interruptions, cyberattacks, interference, and high user demand.”⁵

To alleviate concerns that the merger would lead to higher prices, lower-quality services, and slower product improvements in the three markets noted above, the DOJ concurrently filed a Proposed Settlement⁶ with the court, requiring that Keysight divest Spirent’s high-speed ethernet testing, network security testing, and RF channel emulation businesses to Viavi Solutions Inc. (Viavi) including all tangible and intangible assets necessary to produce and sell the products. Together, the three to-be divested business lines represent 40 percent of Spirent’s total annual revenues.

In addition to the divestiture of assets, the Proposed Settlement contains the following provisions to ensure that the buyer has the employees it needs to effectively replace the lost competition:

• The Proposed Settlement requires that the parties assist buyer Viavi in hiring relevant employees from the business units responsible for the divestiture assets.
• The Proposed Settlement prohibits (for 12 months) the parties’ solicitation of employees that moved to Viavi to work in the divestiture businesses within 90 days of the divestiture unless a) an individual is laid off by Viavi or b) Viavi agrees that the parties may solicit and rehire the individual.
• With certain limited exceptions, the Proposed Settlement also prohibits the parties from enforcing noncompete / nondisclosure provisions or agreements against employees whose employment transfers to Viavi as part of the divestiture.

Additionally, there are several other provisions designed to preserve competition:

• If the DOJ determines at any point in the next five years that more assets are needed to support the Proposed Settlement, the DOJ, at its sole discretion, may seek additional relief to remedy the alleged anticompetitive harms.
• While the initial term of the Proposed Settlement is 10 years, the DOJ may seek to terminate the order if it finds the terms of the Proposed Settlement have been completed and are thus no longer necessary to preserve competition.
• If the Proposed Settlement is violated, the DOJ retains the right to extend the term of the Proposed Settlement.
• The DOJ is entitled to a preponderance of the evidence standard to establish a violation of the Proposed Settlement and the parties waive any argument that a different standard should apply. Historically, the evidentiary standard for establishing a violation was clear and convincing evidence but the DOJ has sought to contract around that evidentiary burden by inserting language that a lower burden, preponderance of the evidence, should apply.
• The parties may not reacquire any part or interest in the divestiture assets for the term of the Proposed Settlement without prior DOJ approval. Like the FTC Proposed Order in Synopsys and Ansys, the DOJ Proposed Settlement here does not contain the prior approval language instituted in Biden-era FTC Orders, which required merging parties under order to obtain prior approval from the agencies before closing any future transaction in the relevant market.

AAG Slater praised the Proposed Settlement as one that “secures enforceable commitments from the merging parties, provides transparency into the Antitrust Division’s efforts to resolve merger investigations, and gives the public an opportunity to comment as provided by statute.” AAG Slater’s statement closely aligns with FTC Chair Andrew Ferguson’s statement announcing the Proposed Order in the Synopsys and Ansys merger—if a structural solution can preserve competition, then neither the DOJ nor FTC will hesitate to engage in remedy discussions.

In short, remedies are no longer persona non grata at either agency, and if a remedy can present a viable solution to preserve competition, neither agency will be shy about pursuing the option.

[1] See Sen Grassley, Questions for the Record Ms. Abigail Slater Nominee to be the Assistant Attorney General for the Antitrust Division of the DOJ (Feb. 12, 2025), available at  https://www.judiciary.senate.gov/imo/media/doc/2025-02-12_-_qfr_responses_-_slater.pdf.

[2] https://www.justice.gov/opa/pr/justice-department-requires-keysight-divest-assets-proceed-spirent-acquisition.

[3] Justice Department Reaches Settlement in Suit to Block ASSA ABLOY’s Proposed Acquisition of Spectrum Brand’s Hardware and Home Improvement Division, DOJ (May 5, 2023) https://www.justice.gov/archives/opa/pr/justice-department-reaches-settlement-suit-block-assa-abloy-s-proposed-acquisition-spectrum.

[4] United States v. Keysight Technologies Inc., D.D.C., No. 1:25-cv-01734, 6/2/25, available at https://www.justice.gov/opa/media/1402286/dl.

[5] Id.

[6] See, Proposed Settlement at https://www.justice.gov/opa/media/1402311/dl.