Update on the Commentary on the DOJ Bank Merger Guidelines

The Exchange, 2022

In 2020 and 2021, the US Department of Justice (DOJ) issued requests for public commentary on its 1995 Banking Guidelines, which had outlined a framework for analyzing bank mergers. To summarize the feedback the DOJ received, Vice President Maria Garibotti coauthored an article, “Update on Commentary on the DOJ Bank Merger Guidelines,” in The Exchange, a newsletter from the American Bar Association (ABA) Antitrust Law Section. In their commentary, the authors summarize both rounds of comments submitted to the DOJ, contextualizing the 2021 call for updates amid the Biden administration’s reconsideration of antitrust policy. The authors note that the 2020 round of comments focused on questions raised by the DOJ, whereas the later round addressed the broadening of factors considered during bank merger review and whether to require additional data reporting, as well as any updates to prior comments. In conclusion, the authors consider the likelihood of the DOJ’s potential tightening of merger review policy, as well as the sensitivity that action may raise given the strong public commentary the DOJ received arguing against such a change.   

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Garibotti ME, Samra EE