The Challenge
Your M&A team is deep into a merger review. The deal is strategic, and leadership expects closure by quarter-end. Then the FTC signals competitive concerns. Your outside counsel suggests waiting to see what remedies the agency will accept. Weeks pass, and the agency's concerns grow. Now you're facing a choice: propose structural fixes early and risk appearing weak, or wait until the agency moves to block the deal and argue your case in court.
This is the "litigate-the-fix" dilemma. It occurs when merging parties delay remedy proposals until late in the antitrust review process, or even after litigation begins, forcing judges to evaluate whether a proposed fix is adequate rather than letting the FTC or DOJ make that call during the administrative process.
The FTC has scheduled a workshop for May 20, 2026, titled "Eleventh-Hour Antitrust Remedy Proposals and Litigating the Fix," to address the rise in these cases. The event will feature FTC Commissioners, DOJ officials, and antitrust experts discussing how enforcers and courts should respond when parties wait until the last minute to propose remedies.
If your organization is planning significant acquisitions, you need to understand what's driving this trend and what it means for your compliance strategy.
The Environment and Constraints
Litigate-the-fix cases don't happen in a vacuum. They emerge from specific pressures that in-house teams face during merger reviews.
First, there's information asymmetry. Your team knows the business rationale and competitive landscape better than the agency does. You're reluctant to propose divestitures or behavioral commitments before you understand exactly what concerns the agency has identified. Proposing too much too soon can lock you into unnecessary concessions.
Second, there's strategic timing. Hart-Scott-Rodino Act review periods are fixed. If you propose remedies early, you restart the clock and extend the review. If the agency is skeptical of your proposal, you've added uncertainty without gaining approval. Some teams calculate that it's better to let the agency make the first move, then respond with precision.
Third, there's litigation leverage. If the FTC or DOJ files to block your deal, you shift from an administrative process to federal court. Courts apply different standards than agencies do. Some merging parties believe a judge will be more receptive to a surgical remedy than an agency that's predisposed to skepticism about the transaction.
These constraints create a rational incentive to delay remedy discussions. But that calculus is changing as enforcers push back.
The Approach Regulators Are Taking
The FTC's decision to host a public workshop signals that the agency views litigate-the-fix cases as a procedural problem undermining effective merger enforcement. By bringing together Commissioners, DOJ officials, scholars, and practitioners, the agency is building a record to justify tighter standards around when and how parties can propose fixes.
What does that mean in practice? Enforcers want merging parties to engage earlier. They want to evaluate remedies during the administrative process, when they have investigative tools and industry expertise at their disposal. They don't want to be forced into a reactive posture where a court has to evaluate a remedy proposal on a compressed timeline without the benefit of a full investigation.
The workshop itself is a compliance signal. It tells in-house teams that waiting until litigation to propose remedies will be met with skepticism, procedural objections, and potentially harsher outcomes. It's also a signal to courts: the agencies believe that late-stage remedy proposals should face a higher burden of proof.
Results and What's at Stake
We don't yet have metrics from the May 2026 workshop, but the trend itself is measurable. Litigate-the-fix cases have increased in recent years, and that increase has consequences for deal timelines, legal costs, and approval rates.
When remedy discussions happen late, deals take longer to close. Litigation adds months or years to a process that might have been resolved administratively. Legal fees compound. Leadership loses patience. And even if you win in court, you've spent resources and goodwill that could have been deployed elsewhere.
More importantly, late remedies often fail. Courts are generalists. They don't have the institutional expertise that the FTC's Bureau of Competition or the DOJ's Antitrust Division brings to remedy design. A judge evaluating a proposed divestiture on a preliminary injunction timeline is working with incomplete information and limited time. If the remedy looks uncertain or difficult to administer, the court is more likely to block the deal outright than to gamble on a fix it can't supervise.
What Merging Parties Would Do Differently
If you could rewind a litigate-the-fix case, what would you change?
Most experienced practitioners say they'd engage earlier, even if it meant revealing their hand. Early engagement doesn't mean capitulation. It means opening a dialogue about what concerns the agency has identified and what range of remedies might address them. You're not committing to a specific fix; you're testing hypotheses and gathering information.
You'd also build remedy options into your deal planning from the start. Before you sign the merger agreement, your team should have mapped the competitive overlaps, identified the business units or assets that might need to be divested, and estimated the cost and complexity of different structural fixes. That preparation gives you flexibility when the agency raises concerns.
And you'd resist the temptation to treat litigation as a remedy design process. Litigation is for challenging the agency's legal theory or its factual findings. It's not the right forum for negotiating the terms of a consent order. If you're going to propose a remedy, propose it when the agency has time to evaluate it properly.
Takeaways for Your Team
If your organization is planning acquisitions that could trigger Hart-Scott-Rodino Act filings, adjust your compliance strategy now.
Start remedy planning during deal diligence. Don't wait for the agency to raise concerns. Map competitive overlaps, identify potential divestiture candidates, and estimate the operational impact of different remedies. This work protects you whether the deal sails through or hits resistance.
Engage the agency early in the review process. If the FTC or DOJ signals concerns, open a dialogue about remedies before the administrative process closes. You'll get better information, more flexibility, and a clearer path to approval.
Don't treat litigation as a remedy workshop. If you're headed to court, it should be because you have a genuine dispute about the competitive effects of the deal, not because you're hoping a judge will bless a remedy the agency rejected.
Track the May 2026 workshop. The FTC will post information about livestream access on its event page in the coming weeks. The discussions will give you insight into how enforcers are thinking about remedy timing, what procedural objections they're likely to raise, and what standards courts should apply. That intelligence will shape your strategy for the next deal.
The rise in litigate-the-fix cases reflects a strategic gamble that's becoming harder to win. Enforcers are pushing back, and courts are growing skeptical of last-minute proposals. If you're planning a significant acquisition, the lesson is clear: build your remedy strategy early, engage the agency proactively, and don't count on the courthouse to solve problems you could have addressed during the administrative process.
