Overview
As both the Federal Trade Commission (FTC) and Department of Justice (DOJ) revive the use of consent decrees to resolve competitive issues in proposed mergers and acquisitions, an approach that had been all but abandoned during the Biden administration, we thought it might be useful to review recent developments in consent decree ancillary provisions such as divestiture trustees, monitoring mechanisms, re-acquisition restrictions, and sunset clauses, to see what insights could be gleaned regarding evolving agency strategies and enforcement priorities. What we see is that the ancillary provisions in recent orders reflect, for the most part, a return to the approach in place during earlier administrations – a status that is likely more favorable for transactions than the prior approach, which presented only two alternatives: full clearance or litigation.
There appears to be a significant degree of consistency in the structure and scope of such ancillary provisions. While deal remedies are, of course, tailored to the specific facts of each transaction, the agencies continue to draw from a relatively standardized toolkit of commitments designed to ensure the effectiveness of both structural and behavioral relief:
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Most recent consent decrees include 10-year sunset provisions, although some have built-in review procedures that increase agency flexibility by permitting additional divestiture requirements to be added if initial remedies prove inadequate.
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Divestiture trustee provisions are commonly included in structural remedy cases, even when not immediately activated, to serve as a critical enforcement backstop.
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Monitoring provisions are typical.
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Prior approval requirements have not featured in recent consent decrees, but prior notice obligations are widely used, requiring the merged firm to notify the agency before acquiring assets or businesses in relevant markets, even if the transaction falls below Hart-Scott-Rodino (HSR)’s filing thresholds.
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Although the agencies prefer structural relief, behavioral remedies may be accepted in appropriate circumstances.
Taken together, these developments broadly indicate a return to the consent decree framework that was in place prior to the prior administration's wholesale rejection of settlements. This approach reflects a strategic balancing act, preserving enforcement strength while avoiding potentially overreaching constraints that could chill legitimate business activity.
Recent Key Transactions
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ACT / Giant Eagle
On August 16, 2024, Alimentation Couche-Tard (ACT) agreed to acquire certain retail and wholesale fuel assets from Giant Eagle, Inc. (Giant Eagle). The FTC alleged that the transaction would substantially lessen competition in 35 local markets for gasoline and 19 for diesel fuel in Indiana, Ohio, and Pennsylvania, violating Section 7 of the Clayton Act and Section 5 of the FTC Act. To remedy these concerns, ACT agreed to divest 35 gas stations to Majors Managements, LLC within 20 days post-closing.1
In addition to requiring these divestitures, the consent order also prohibits ACT from re-acquiring the divested assets for a period of ten years and requires ACT to notify the Commission before acquiring any stations identified by the Commission in a confidential Appendix as competitively significant in the local markets of the divested assets, regardless of whether such subsequent acquisitions trigger an HSR filing requirement. The order also includes a provision that allows the FTC to appoint an independent monitor to oversee the parties’ compliance with the requirements of the consent order, as well as a sunset provision specifying that the consent decree will terminate 10 years from the date it is issued.2
2. Synopsys / Ansys
In January 2024, Synopsys, Inc. (Synopsys), a leading developer and supplier of software used to design semiconductors, proposed to acquire all of the outstanding and issued voting securities of Ansys, Inc. (Ansys), a provider of simulation software tools, in a transaction valued at approximately $35 billion. The FTC determined that the proposed transaction, without divestitures, would be anticompetitive in markets for optical software tools, photonic software tools, and RTL power consumption analysis tools. To address these concerns, the Commission requires the parties to divest Synopsys’s optical software and photonic software tools, and Ansys’s RTL power-analysis software, to the approved buyer Keysight Technologies, Inc (Keysight), within ten days following closing of the main transaction.3 The consent also includes a provision that would require additional divestitures if the Commission determines, within 12 months of the order, that Keysight requires additional assets in order to achieve the purposes of the order.
In addition to these divestitures, the consent order also requires the parties to provide a limited amount of transition services to Keysight, authorizes the appointment of an independent monitor to oversee the implementation of the consent order and a divestiture trustee if the parties fail to complete the required divestiture, prohibits Synopsys from re-acquiring any of the divestiture assets for ten years, requires the parties to file compliance reports, and grants the FTC broad access to information and personnel for the purpose of assessing the parties’ compliance with the consent order. Like the ACT/Giant Eagle consent decree, the consent decree for Synopsys/Ansys also contains a sunset provision specifying that the order will terminate 10 years from the date it is issued.4
3. Keysight / Spirent
On March 28, 2024, Keysight Technologies, a leading provider of communications testing and measurement equipment, announced its proposal to acquire Spirent Communications plc, another major player in the same sector, for approximately $1.5 billion. On June 2, 2025, the DOJ filed a civil antitrust complaint and proposed final judgment resolving concerns in the alleged U.S. markets for three critical product categories: (1) high-speed Ethernet testing equipment; (2) network security testing equipment; and (3) radiofrequency (RF) channel emulators. The proposed Final Judgment requires the divestiture of Spirent’s product lines in all three markets, representing approximately 40% of Spirent’s total revenues, to DOJ-approved buyer Viavi Solutions, Inc.5
The Final Judgment also requires Keysight and Spirent to facilitate Viavi’s hiring of key personnel, ensuring continuity and operational effectiveness for the divested business lines. For 12 months following the divestiture, the transaction parties are prohibited from soliciting to rehire any employees who accepted positions at Viavi within 90 days of the divestiture, unless those employees are laid off by Viavi or Viavi provides written consent. Additionally, Keysight and Spirent may not enforce non-compete or non-disclosure agreements against transferring employees, except in limited circumstances.6
Although the Final Judgment is set to expire 10 years from the date of entry, it includes a review mechanism allowing the DOJ to reopen the proceeding and seek additional relief at any time during the five-year period following entry of the judgment if, in the DOJ’s sole discretion, the initial remedy proves inadequate. Conversely, the DOJ may terminate the decree early after five years from the date of its entry, upon notice to the court and defendants, if it determines that the remedy has fully restored competition and ongoing oversight is no longer necessary. The DOJ may also extend the duration of the Final Judgment upon a finding of noncompliance. To establish a violation, the DOJ need only to meet a "preponderance of the evidence" standard, significantly lower than the traditional "clear and convincing evidence" standard, which the parties expressly waived. Finally, the decree prohibits the parties from reacquiring any of the divested assets during the life of the order without prior DOJ approval but does not impose any prior approval requirement for future acquisitions in the same market.7
4. Safran / Collins Aerospace
In the Safran/Collins transaction, the DOJ required Safran S.A. to divest key assets to proceed with its $1.8 billion acquisition of certain flight control and actuation businesses from Collins Aerospace, a subsidiary of RTX Corporation. To address DOJ's concerns that the merger would substantially lessen competition in the market for Trimmable Horizontal Stabilizer Actuators (THSAs), critical components used to control the pitch of commercial aircraft, the proposed Final Judgment mandates that Safran divest its North American flight control actuation business, including all THSA-related assets, to Woodward, Inc., a DOJ-approved buyer. The divestiture includes all tangible and intangible assets necessary for the design, manufacture, and sale of THSAs, ensuring Woodward can operate as a viable, independent competitor.8
The Final Judgment also includes detailed personnel and workforce protections to support business continuity and preserve institutional knowledge. Safran must identify all relevant personnel and provide Woodward with full access for recruitment. Woodward must have a fair opportunity to interview and hire these employees. For individuals who accept offers of employment within 180 days of the divestiture, Safran must waive any non-compete, non-disclosure covenants (with limited exceptions) and must vest certain compensation or benefits to facilitate a smooth transition. For 12 months following the divestiture, Safran is also prohibited from soliciting these employees for rehire unless they are terminated or Woodward provides written consent. The Final Judgment also includes robust firewall provisions to prevent the exchange of competitively sensitive information during the transition period. For instance, if Safran personnel temporarily assist Woodward post-closing or remain on-site at shared facilities, they must receive firewall training and written policies designed to prevent the improper disclosure of Woodward's proprietary information to Safran employees.9
To ensure compliance, the DOJ will appoint a court-approved independent monitor with authority to investigate and submit periodic reports detailing the parties' adherence to their obligations under the Final Judgment. In addition, the decree prohibits Safran and Collins from financing Woodward's acquisition of the divested assets or reacquiring any interest in the divested business for the duration of the Final Judgment, absent prior DOJ approval. The Final Judgment will remain in effect for 10 years, but it includes a five-year review provision allowing the DOJ, at its sole discretion, to reopen the proceeding and seek additional relief if the remedy proves inadequate. The DOJ retains full enforcement rights, including the ability to seek contempt sanctions under a "preponderance of the evidence" standard. Like the Keysight / Spirent consent decree, Safran and Collins Aerospace also expressly waived any argument that a higher evidentiary threshold, such as the "clear and convincing evidence" standard, should apply.10
5. HPE / Juniper
On January 30, 2025, the DOJ filed a civil antitrust complaint challenging Hewlett Packard Enterprise Co. (HPE)'s proposed $14 billion acquisition of Juniper Networks, Inc. (Juniper), alleging that the transaction would substantially lessen competition in the U.S. market for enterprise-grade wireless local area networks (WLANs). On June 27, 2025, the DOJ and defendants filed a Stipulation and Order along with a Proposed Final Judgment to resolve the case. Under the Proposed Final Judgment, HPE must divest its "Instant On" campus and branch networking business, including all associated tangible and intangible assets, to a buyer acceptable to the DOJ within 180 days of the order’s entry or five days after closing, whichever is later. HPE is also required to use best efforts to obtain all necessary third-party consents to effectuate the transfer. Concurrently, the parties must conduct an auction to license Juniper's "AI Ops for Mist" source code, a core component of its WLAN platform, to at least one DOJ-approved licensee within the same window. Upon request, the parties must provide transitional support to the licensee, including access to engineers and sales personnel familiar with the technology.11
If the parties fail to complete the divestiture or licensing obligations on time or within a DOJ-approved extension, the DOJ may petition the court to appoint a divestiture or license trustee to carry out the remedy and submit monthly progress reports. Other oversight provisions include 30-day affidavits certifying compliance with divestiture and licensing requirements, and a requirement to retain all relevant implementation records for at least one year post-completion. The DOJ also maintains broad inspection and audit authority, including the right to review documents, interview personnel, and require independent audits at the defendants' expense. Like the other recent consent decrees, this Final Judgment also contains an explicit sunset provision specifying that it will remain in effect for 10 years from the date of entry.12
6. Omnicom / IPG
On June 23, 2025, the FTC announced that it had accepted a proposed consent order to address competition concerns arising from the proposed $13.5 billion acquisition by Omnicom Group Inc. (Omnicom) of The Interpublic Group of Companies, Inc. (IPG). The FTC alleged that the transaction, which would create the world’s largest media buying advertising agency, raised concerns under Section 7 of the Clayton Act and Section 5 of the FTC Act, particularly due to the increased risk of coordinated conduct among media buying agencies. To address these concerns, the consent order prohibits Omnicom and its subsidiaries from coordinating with competitors to steer advertising away from media outlets based on political or ideological viewpoints, unless explicitly directed to do so by the advertiser. It also bars Omnicom from creating or maintaining "exclusion lists" that blacklist publishers based on political or ideological criteria unless such lists are generated at the advertiser’s explicit request. Similarly, Omnicom may not use third-party exclusion lists for this purpose unless expressly instructed by the advertiser. Any existing tools, policies, or practices that violate these restrictions must be eliminated as of the order's effective date.13
To ensure compliance, Omnicom must notify the FTC within five days of the acquisition's effective date and submit detailed annual compliance reports for five years, verified by a senior corporate officer. These reports must describe the company's media buying practices, any exclusion lists used, how they were developed, and whether they were based on client instructions. Omnicom is also required to retain, for five years, all communications related to advertiser direction on ideological exclusions and to make these records available to the FTC upon request. The FTC retains broad oversight authority under the consent order, including the right to inspect documents and facilities, interview employees and officers, and demand full cooperation from Omnicom in any related investigations. This includes the production of documents, data, personnel, and access to third-party agents. Like other recent consent decrees, this order will also remain in effect for 10 years from the date of entry.14
Conclusion
As the FTC and DOJ return to consent decrees as a core enforcement tool, a clearer picture emerges of how merger remedies are being structured to balance durability with enforceability. Across industries, recent consent orders consistently incorporate 10-year sunset provisions, independent monitor and trustee authority, and prior notice requirements that extend regulatory oversight well beyond the deal’s closing. While structural remedies remain the agencies' default approach in horizontal mergers, conduct remedies, when imposed, are narrowly tailored and limited in duration. The agencies are also incorporating building in the flexibility to require additional divestitures if competitive conditions so require, in the agency’s sole discretion.
Together, these developments reflect a more calibrated enforcement strategy, one that preserves agency supervisory powers while presenting a more nuanced and flexible economic policy approach than the litigation-or-bust approach of the prior administration. For merging parties, successful resolution increasingly depends not only on the viability of proposed divestitures, but also on the scope of anticipated ancillary commitments. As consent decrees re-enter the enforcement toolbox, for merging parties the ability to proactively navigate both the litigation and more regulatory paths will be critical to securing success.
1 Decision and Order, In the Matter of Alimentation Couche-Tard Inc., File No. 241-011, Docket No. C-available at: https://www.ftc.gov/system/files/ftc_gov/pdf/ACTDOFINAL.pdf.1.pdf; see also, FTC, Analysis of Agreement Containing Consent Orders to Aid Public Comment, In the Matter of Alimentation Couche-Tard, Inc. File No. 241-011, Docket No. C-available at: https://www.ftc.gov/system/files/ftc_gov/pdf/ACTGEAAPCFINAL.pdf.
3 Decision and Order, In the Matter of Synopsys, Inc., and Ansys, Inc. Docket No. C-, available at: https://www.ftc.gov/system/files/ftc_gov/pdf/241_0059_synopsys-ansys_decision_and_order_redacted_public_version_0.pdf.
5 U.S. v. Keysight and Spirent Communications Plc, Proposed Final Judgement, 1:25-cv-01734 (D.D.C), available at: https://www.justice.gov/atr/media/1402406/dl.
6 Id.
8 See United States v. Safran S.A., et al., Proposed Final Judgment, No. 1:25-cv-01425 (D.D.C. June 28, 2025), available at https://www.justice.gov/opa/media/1403846/dl.
9 Id.
11 United States v. Hewlett Packard Enterprise Co. & Juniper Networks, Inc., No. 5:25‑CV‑00951‑PCP (N.D. Cal.), Proposed Final Judgement, (Jun. 27, 2025).
13 In the Matter of Omnicom Group Inc. and The Interpublic Group of Companies, Inc., Decision and Order, available at: https://www.ftc.gov/system/files/ftc_gov/pdf/Omnicom-DandO.pdf.
