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Federal Trade Commission Positions Itself to Overcome Federal Judiciary in Merger Clearance Decisions

January 22, 2009

By Michael P.A. Cohen and Sarah Pojanowski

On January 13, 2009, the Federal Trade Commission issued interim final rules amending its Rules of Practice for adjudication, reportedly with an eye toward proceeding against mergers administratively regardless of outcomes in federal court.

Both the FTC and DOJ Antitrust Division must go to federal court to enjoin a merger. If the court denies an injunction, the merger can close. That is typically the end of the line for DOJ, but the FTC gets a second bite at the apple. It can continue a case against a closed merger in its own administrative tribunal and ultimately order divestitures or unwinding.