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Antitrust Remedies: Divestiture Actions Pre- and Post-Merger, Implications of Steves & Sons v. JELD-WEN

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, September 23, 2021

Recorded event now available

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This CLE course will analyze the recent Fourth Circuit Court decision in Steves & Sons Inc. v. JELD-WEN Inc. and its endorsement of divesture as a remedy in private antitrust actions. In addition, the panel will discuss the previous use of divestiture as a remedy in government-initiated actions and how the case expands the remedy to private actions while also extending the timeframe after closing of a merger in which such actions may be pursued.


On Feb. 18, 2021, in Steves & Sons Inc. v. JELD-WEN Inc. (Steves), 988 F.3d 690 (4th Cir. 2021), the Fourth Circuit Court upheld an unprecedented divestiture order in an antitrust case brought by a private plaintiff. Because it is the first time the divesture remedy was granted in a private case, the case has significant implications for private antitrust as well as M&A practice going forward.

Divestiture is a customary form of relief in Clayton Act Section 7 enforcement actions brought by the FTC or the Antitrust Division of the DOJ. In Steves, the court reasoned those remedies would be inadequate. Instead, only divestiture of certain assets by JELD-WEN would solve the pricing duopoly resulting from its merger with CMI. While the facts of Steves are unique, the court's reasoning could be applied in many other scenarios.

Steves is also notable because the action was filed four years after the transaction in question closed. The Fourth Circuit affirmed the trial court's conclusion that JELD-WEN failed to establish unreasonable delay by the plaintiff in initiating the lawsuit or prejudice to the defendant. Hence, the required elements of a laches defense were not present. The court's analysis could be applied to future public as well as private actions.

Listen as our authoritative panel discusses this ground-breaking decision and how it may affect private antitrust actions going forward.



  1. Private antitrust actions and the Clayton Act
    1. Causes of action
    2. Remedies granted before Steves
  2. Steves & Sons Inc. v. JELD-WEN Inc.: case facts, basis of the claim
  3. Discussion of district court and circuit court decisions
    1. Allowances of divestiture as a remedy
    2. Denial of laches as a defense
  4. Implications for future private antitrust actions and M&A transactions generally


The panel will review these and other important issues:

  • Why has divestiture historically been granted only in antitrust enforcement actions brought by government agencies?
  • What remedies have traditionally been granted to private plaintiffs in antitrust actions?
  • Why was divestiture deemed to be the only appropriate remedy in the Steves case?
  • After Steves, what are the limitations on how long a private party can wait to bring an action opposing a merger?


Adams, Sheila
Sheila R. Adams James

Davis Polk & Wardwell

Ms. Adams has represented clients in a variety of civil litigation and government investigations, and her practice...  |  Read More

Ownbey, Austin
Austin A.B. Ownbey

Foley Hoag

Mr. Ownbey focuses his practice on representing and counseling clients on a range of antitrust issues, including the...  |  Read More

Steren, E. John
E. John Steren

Epstein Becker & Green

Mr. Steren devotes a significant portion of his practice to helping healthcare organizations manage the antitrust risks...  |  Read More

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