Draft Consent Decree

Skill: Antitrust Consent Decree Drafting

1. Subject-matter triage

• Use this skill when the task asks for a proposed final judgment, consent decree, or settlement-order package in an antitrust matter, paired with an internal issues memo.
• Treat the decree as the primary deliverable and the memo as secondary; draft the decree first, then the memo after the decree exists in usable form.
• Read the settlement term sheet, complaint, and support materials together, then harmonize them into one operative decree and one concise risk memo.
• If multiple remedy periods, parties, assets, or transition stages appear, inventory them before drafting so each deadline and restriction is anchored to a defined event.

2. Failure modes the skill is correcting

• The decree describes remedies without tying every deadline to a defined trigger event, leaving compliance periods ambiguous or unenforceable.
• The decree omits or under-specifies the crown jewel fallback, so the remedy lacks an automatic escalation if the primary divestiture fails.
• The decree leaves the court without express retained jurisdiction or the government without inspection rights, weakening enforcement.
• The decree does not align firewall duration with any transitional services period, creating an information-flow gap after operational separation.
• The memo identifies issues but stops at description instead of assigning severity, consequence, and action.
• The draft cites legal conclusions without naming the governing antitrust and consent-decree authority supporting them.
• The final package treats the memo as a substitute for the decree, rather than a secondary advisory product.

3. Legal frameworks / domain conventions that apply

• Proposed antitrust final judgments commonly include public notice, an opportunity for comment, and court review under the public-interest standard in the Tunney Act, 15 U.S.C. § 16(b)–(h).
• Remedy deadlines should be tethered to a specific event such as entry of the decree, appointment of a trustee, approval of a buyer, or completion of a transitional service term; relative periods without a start date are fragile.
• Divestiture provisions should state who controls the sale process, what buyer qualifications apply, whether government approval is required, and what happens if the parties fail to close on time.
• A crown jewel fallback should identify the trigger, the expanded asset package, and the shortened completion window that applies if the primary divestiture does not occur.
• Monitoring-trustee provisions should address appointment, independence, powers, reporting, access to books and records, and the trustee term.
• Firewalls should cover the information categories that could create competitive harm, and should survive any transitional services arrangement long enough to prevent post-separation leakage.
• Buyer transfer restrictions should bar resale or further transfer to an unapproved purchaser for a defined period or until specified conditions are met.
• Retained jurisdiction should be express and broad enough to support enforcement, interpretation, modification, and contempt proceedings.
• Any legal proposition in the decree or memo should be tied to a controlling authority by name and section, rule, or citation form used in the source materials.

4. Analytical scaffolds

1. Build the decree around the remedial sequence:
   • identify the operative trigger event;
   • state the primary remedy deadline;
   • state the fallback remedy if the primary one fails;
   • specify enforcement mechanisms and court supervision.
2. For each time-based clause, check:
   • what starts the clock;
   • what stops it;
   • whether a trustee, approval, or closing event changes the clock.
3. For divestiture provisions, resolve:
   • the scope of assets to be sold;
   • buyer eligibility and approval;
   • whether the parties may market the assets themselves or through a trustee;
   • what happens if the sale is not completed on schedule.
4. For the crown jewel fallback, make the escalation self-executing in concept and clear in drafting:
   • define the trigger precisely;
   • enlarge the asset set expressly;
   • shorten the next window meaningfully without creating ambiguity.
5. For trustee provisions, include:
   • appointment mechanism;
   • independence and compensation;
   • authority to inspect documents, personnel, and facilities as needed;
   • reporting to the government and, where appropriate, the court.
6. For non-compete, non-solicitation, firewall, and resale restrictions:
   • tie each duration to a defined trigger;
   • ensure the duration matches the competitive risk;
   • make the scope no broader than needed to preserve the remedy.
7. For the issues memo, organize each open point as:
   • issue;
   • governing authority or document hook;
   • severity;
   • risk;
   • recommended fix.
8. Every legal proposition relied on in the draft or memo should cite the governing authority that supports it, including the antitrust statute, the Tunney Act, relevant procedural rules, or other controlling source identified in the record.

5. Vertical / structural / temporal relationships

• Track the relationship between the divestiture period, any trustee period, any transitional services arrangement, and the firewall period; the firewall should not end merely because services end if competitive risk persists.
• If a deadline is measured from decree entry but approval or closing may occur later, state whether the deadline tolls, resets, or continues.
• If a crown jewel fallback is triggered by failure of the primary divestiture, make clear whether the fallback period runs from the original deadline, from notice of failure, or from another defined event.
• If the decree includes a buyer approval process, ensure the approval step does not silently consume the full divestiture window without an express consequence.
• Keep court jurisdiction, inspection rights, and trustee reporting alive through the period needed to police compliance, not merely until the initial closing.

6. Output structure conventions

Deliverable 1 — Proposed Final Judgment / Consent Decree

• Caption, parties, and court
• Findings or recitals tied to the complaint and settlement materials
• Definitions section with all trigger events and time anchors
• Divestiture obligations with buyer-approval mechanics
• Crown jewel fallback with escalation trigger and compressed timetable
• Trustee provisions, if used
• Firewalls, non-compete, non-solicitation, and resale restrictions
• Inspection, reporting, and record-access rights
• Retained jurisdiction, enforcement, and modification language
• Public-comment and court-review language consistent with proposed antitrust decree practice
• Clean operative provisions only; avoid explanatory discussion inside the decree

Deliverable 2 — Issues Memorandum

• Short executive summary
• Issue register, each entry stating:
  • the issue;
  • severity on a uniform ordinal scale defined once at the top;
  • the source hook or authority;
  • the consequence if not fixed;
  • the drafting recommendation
• Include a brief recommended actions section at the end with imperative verbs, responsible role, and timing anchor
• Keep the memo advisory and solution-oriented; do not restate the entire decree
• If only one party, period, or remedy path is relevant, say so expressly; otherwise enumerate each item before analysis and address each separately