Former FTC Official Ducore Unpacks Remedy in Bayer-Monsanto Merger — Highlights Risks and Monitoring Tasks Ahead for DOJ

In an open letter to AAI, Daniel Ducore, former Assistant Director for the FTC’s Bureau of Competition, unpacks the remedy in the recent merger of agricultural biotechnology giants Bayer and Monsanto. In May of 2018, the U.S. Department of Justice (DOJ) Antitrust Division announced its settlement with agricultural biotechnology firms Bayer AG and Monsanto Company. The settlement resolved its objections to that merger with a proposed, broadly drafted divestiture of most of Monsanto’s crop protection businesses to BASF SE.

The $9 billion divestiture, by which BASF would acquire Bayer’s position in genetically modified seeds and seed traits, foundational herbicides, other crop seeds, and related research and development efforts appears to be as robust a divestiture as might be imagined. It is also the largest divestiture ever obtained by either the Division or the Federal Trade Commission.

Throughout the Antitrust Division’s investigation, AAI and others urged enforcers to challenge the deal as simply “too big to fix,” and when the settlement was announced AAI criticized the remedy for raising “execution risk.” Ducore’s letter discusses the broad scope of the remedy, the risks that remain, and some suggestions for how the Antitrust Division should continue to review this particular remedy in the years following its implementation and share its learning with the public.