FTC Orders Divestitures in Retail Fuel Outlet Deal and Signals a Return to More Standard Remedy Discussions

Merger consent orders are back at the FTC, and the FTC’s most recent action showcases how the current leadership is analyzing divestiture proposals. Last week, the FTC approved a proposed consent agreement in Alimentation Couche-Tard Inc.’s (ACT) acquisition of retail fuel outlets from Giant Eagle, Inc. that paired standard retail divestitures with a “prior notice” requirement that ACT notify the agency of future acquisitions in certain markets regardless of size. This FTC has signaled greater acceptance of remedies than the prior administration, and this most recent consent puts that on display, with Commissioner Meador providing merging parties guidance on designing effective remedies.

Return of Remedies

Within the first few months of the new administration, the leadership of the antitrust agencies have repeatedly stated their preference for “effective and robust structural remedies” rather than resorting to “costly and time-consuming litigation,” where appropriate. This is a marked shift from the Biden-era FTC and DOJ, which emphasized litigating to block anticompetitive mergers altogether, and taking remedies such as divestitures as “the exception, not the rule.” FTC Chairman Ferguson has also stated that the FTC takes “a very realistic approach to remedies,” accepting them when the agencies are “quite confident that they will be successful” in fixing competitive concerns.

Consent Agreement in ACT’s Acquisition From Giant Eagle

The proposed transaction, valued at $1.57 billion, involves multinational convenience store operator ACT’s acquisition of GetGo Café + Markets and its 270 retail fuel outlets from supermarket retailer Giant Eagle, Inc. The acquisition was announced in August 2024 with the FTC announcing its administrative complaint and proposed consent order on June 26, 2025. In its complaint, the FTC alleges that the retail sale of gasoline and the retail sale of diesel are the relevant markets. The complaint identified 35 local markets in Indiana, Ohio, and Pennsylvania as the relevant geographic markets, which are noted to be highly localized, ranging from a few blocks to a few miles. The FTC alleges that the acquisition would reduce the number of market participants from 5 to 4 and 4 to 3 in the majority of the relevant local markets. In three local markets, however, the FTC alleged concerns where the transaction would reduce the number of competitors from 6 to 5.

Under the proposed consent agreement, ACT will be required to divest 35 gas stations in these local markets to Majors Management, LLC, with the standard terms prohibiting reacquisition of assets and other limitations. While the agreement largely evidences the new leadership’s strategic shifts away from the prior administration, it does retain some elements of consent orders.

First, the consent order has a limited non-solicit restriction. Specifically, ACT cannot, for a period of 90 days after completing the divestitures, solicit or seek to induce an employee of a divested store to terminate employment with Majors. Similarly, ACT cannot, for a period of 180 days, solicit or seek to induce an employee above the store level to terminate employment with Majors.

Second, the consent order imposes a “prior notice” provision—but not a “prior approval” requirement, the latter being a requirement of consent orders entered into by the Biden FTC. Here, the ACT consent agreement requires ACT for a period of 10 years to make a Hart-Scott-Rodino filing to the FTC at least 30 days prior to consummating any acquisition of certain retail fuel outlets designated as competitively significant in the local markets. These types of prior notice provisions are typically used in industries where potentially problematic transactions are likely to fall below the HSR threshold and would otherwise not be HSR reportable.

Additional Insight on Remedy Negotiations

In an accompanying statement to the consent agreement, Commissioner Mark R. Meador further elaborated on his views of when the FTC should accept a merger remedy, offering a potential roadmap for parties considering remedy proposals. He noted that “clean divestitures of standalone business lines” should be primarily demanded “in all but extremely rare cases” and that structural remedies “must be self-sustaining.” Parties are advised to approach the FTC “early, candidly, and in good faith,” particularly when negotiating transactions involving complex divestiture packages across multiple locations, and “strive to propose straightforward, autonomous, and viable divestitures that do not require material post-divestiture Commission day-to-day oversight or intervention.”

Commissioner Meador also highlighted other factors that parties should consider when proposing divestitures, including simplicity, autonomy, viability, inclusion of binding commitments, as well as the capability and credibility of the proposed divestiture buyer. As he noted, parties should “come prepared with a credible, fully vetted, and enforceable solution” in order to set themselves up for the smoothest path to approval.

In contrast, he said that in cases where “the proposed remedy involves partial asset combinations or atypical carve-outs, the Commission should not hesitate to reject a proposed remedy package outright.” He also indicates that “to the extent the FTC pursues litigation, the burden lies squarely on the merging parties to prove that any proposed remedy package restores competition”—an issue that has been contested in multiple recent merger cases, with court guidance being mixed.