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.

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.”3 While neither agency foreclosed remedies altogether, consent decrees in merger cases reached a historic low during the Biden Administration.4 By 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 six6 settlements 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.

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 Manual8 explained that it had “a preference for requiring the divestiture of an existing standalone business, because it has demonstrated success competing in the relevant market.”9 The 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.”10 The 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

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.13 The 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.15 The 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.16 Months after the complaint was filed, defendants proposed to fix the merger by divesting assets from Biocoat, Inc., in which GTCR held a majority interest.17 Claiming 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.18 Cummings 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.20 The 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.21 The 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.22