Wednesday, February 4, 2009
Posted by D. Daniel Sokol
Justin Halkala (Wayne State - Law) provides his analysis of The Case for Different Preliminary Injunction Standards in Merger Challenges.
is made of the different standards that the Federal Trade Commission
and the Antitrust Division of the Department of Justice must meet when
seeking a preliminary injunctions against a merger on antitrust
grounds. The differing standards that apply reflect the different
natures of the agencies, and were designed for the same reasons that
the agencies were designed as concurrent enforcers. Why, then, do the
agencies divide pre-merger reviews under the Hart-Scott-Rodino across
industry lines? This system subjects the merging companies to different
standards because of their industry affiliations. If, as critics
maintain, the standards are indeed different, industries will
consistently be subjected to more or less stringent merger review based
upon which side of the line they fall.
This article argues that the problem isn't that the agencies are different and make use of different preliminary injunction standards, but instead it is that the division of merger review between the agencies by industry inappropriately splits the merger review market, and undermines the purpose of decentralizing antitrust enforcement generally between the DOJ and FTC.