Tuesday, May 12, 2009
Posted by D. Daniel Sokol
Kyle Andeer (FTC) asks, Another Look at Process: Is There Really a Difference between Merger Litigation at the Agencies?
ABSTRACT: The FTC has emphasized its unique role in antitrust enforcement and its administrative proceedings in these recent cases. Its position is grounded in the text of its authorizing statutes, Congressional intent, and longstanding legal precedent. Nevertheless, the FTC has been subjected to harsh criticism by some in the defense bar, arguing that the emphasis placed on the Commission’s administrative role and the D.C. Circuit’s decision in Whole Foods place the FTC in a stronger position to challenge mergers than the DOJ. That, in turn, leads to a higher hurdle for mergers at the FTC than it at the DOJ. Some urge the FTC to treat the preliminary injunction hearing in federal court as a de facto hearing on the merits.
This not only ignores the Congressional intent behind the FTC but it is not at all clear that expedited proceedings on the merits before lay judges is the best model to decide merger challenges.