Wednesday, May 13, 2009
Posted by D. Daniel Sokol
Paul Denis (Dechert) & Craig Falls (Dechert) explain that the Likelihood of Success is Still Part of the Law, Even Under 13(b).
ABSTRACT: The confusion following in the wake of the now infamous trio of opinions in Federal Trade Commission v. Whole Foods Market, Inc. has allowed some to argue that the FTC faces a lesser burden under Section 13(b) of the FTC Act, 15 U.S.C. § 53(b), to show likelihood of success than is faced by DOJ under Section 15 of the Clayton Act, 15 U.S.C. § 25 or private litigants under traditional equity standards. But the legislative history and prior case law make clear that the FTC is on exactly the same footing as other litigants, no better and no worse.
Given the tortured evolution of the law on this point, it may well be time for Congress to adopt the recommendation of the Antitrust Modernization Commission and clarify that the same standard applies to all preliminary injunction litigants.