In this issue:
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FTC 13(b): The Controversy Regarding Preliminary Injunctions
Another Look at Process: Is There Really a Difference between Merger Litigation at the Agencies?
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.
Likelihood of Success is Still Part of the Law, Even Under 13(b)
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.
The FTC’s Stacked Deck under Section 13(b): Does CCC Holdings Herald a Return to the S-C-P Paradigm?
A less deferential standard for granting injunctive relief, such as that applicable to injunction requests by the U.S. Department of Justice (“DOJ”), would ensure that important non-structural factors receive due attention and would thereby enhance the quality of pre-merger review.
FTC v. CCC Holdings: Message Received
The court in CCC Holdings (1) unambiguously followed Whole Foods (despite there being no majority opini
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