DealLawyers.com Blog

Historically, the FTC & DOJ’s merger guidelines have had a significant influence on how courts interpret federal antitrust laws.  But the new guidelines announced last month take a much more aggressive tone than prior versions, and in light of the antitrust agencies’ decidedly mixed record in the courts when it comes to merger challenges, it’s fair to ask whether courts will buy-in to the legal positions reflected in those guidelines.  This excerpt from a recent LegalDive article says the guidelines may not carry a lot of weight with the courts:

It remains unclear whether the changes will impact how courts rely on the guidelines to inform their rulings when deciding cases brought by companies challenging FTC and DOJ antitrust actions in court.

Courts have used the guidelines because they’ve largely been seen as objective criteria that have evolved over time and more or less reflect a consensus, but this latest revamp could be seen as a departure from that, Colin Kass of Proskauer Rose says. “If these get adopted,” Kass told Legal Dive last month, when the agencies were still collecting public comments, “almost certainly they won’t survive the next administration.”

Losing that continuity over administrations could signal to the courts that the guidelines aren’t to be considered a consensus document anymore. “Whether the courts will continue to view them as [non-partisan], we don’t know,” Kass said.

Over the last two years the agencies have had a mixed record in the courts, losing more than they’ve won. By using the revamped guidelines to double down on their strategy, there’s a good chance their win-loss record won’t improve as courts dismiss their guidelines.

– John Jenkins