Judicial Relief and Remedies

Pages475-546
CHAPTER XIV
JUDICIAL RELIEF AND REMEDIES
Most mergers that raise antitrust concern are resolved without
litigation.1Merging firms can often resolve a federal or state
enforcement agency’s concerns without litigation through “fix-it-first”
restructuring of their transaction, or by addressing the agency’s concerns
through a divestiture or other remedy pursuant to a negotiated consent
decree.2In cases where the enforcement agency and merging firms
1. See, e.g., FTC and DOJ Hart-Scott-Rodino Annual ReportFiscal Year
2013 (2013) [hereinafter 2013HSR Report], available athttp://www.ftc.
gov/system/files/documents/reports/36th-report-fy2013/140521hsr
report.pdf (in FY 2013, the Federal Trade Commission (FTC or the
Commission) challenged twenty-threemergers, resulting in sixteen
consent agreements, twowithdrawn or abandoned transactions, one
complaint in federal court to permanently enjoin the acquisition, and four
in which the FTCinitiated administrativelitigation; the Antitrust Division
of the U.S. Department of Justice (DOJ or the Division)c hallenged
fifteenmergers, resulting in threeabandoned transactions, three
restructurings of t he proposed transactions, and twoc hanges in conduct to
resolve competitive concerns, and initiated litigation in seven, which led
to an additional fiveconsent decrees, one success in the Bazaarvoice/
Power Reviews acquisition, and one pending trial). For a full discussion
of administrative procedures and remedies, seeABASECTION OF
ANTITRUST LAW,THE MERGER REVIEW PROCESS:ASTEP-BY-STEP
GUIDE TO U.S.AND FOREIGN MERGER REVIEW(4th ed.2012) [hereinafter
ABA,THE MERGER REVIEW PROCESS].
2. See, e.g.,U.S.DEPT OF JUSTICE,ANTITRUST DIV.,POLICY GUIDE TO
MERGER REMEDIES (2011) [hereinafter 2011 POLICY GUIDE], available at
http://www.justice.gov/atr/public/guidelines/ 272350.pdf; FED.TRADE
COMMN,NEGOTIATIN G MERGER REMEDIES(2012), available at
http://www.ftc.gov/system/files/attachments/negotiating-merger-remed
ies/merger-remediesstmt.pdf. See alsoBill Baer, Ass’t Att’y Gen.,
Antitrust Div., U.S. Dep’t of Justice, Remedies Matter: The Importance
of Achieving Effective Antitrust Outcomes, Remarks as Prepared for the
Georgetown Law 7th Annual Global Antitrust Enforcement Symposium,
(Sept. 25, 2013), available at http://www.justice.gov/atr/public/speeches/
300930.pdf (“Litigation is not our preferred option. In most cases, we are
475
476Mergers and Acquisitions
cannot negotiate a settlement, however, the enforcement agency (or a
private third party3) must initiate litigation to block or unwind the
transaction.4
The Hart-Scott-Rodino Antitrust Improvements Act of 1976 (HSR
Act)5establishes a procedure for notifying mergers that meet certain
able to work with the parties and preserve competition through a consent
decree that separates the anticompetitive parts of atransaction from the
remainder.”); Deborah L. Feinstein, Director, Bureau of Competition,
Federal Trade Commission, The Significance of Consent Orders in the
Federal Trade Commission’s Competition Enforcement Efforts (Sept. 17,
2013), available at http://www.ftc.gov/sites/default/files/doc uments/
public_statements/significance-consent-orders-federal-trade-commi ssion
%E2%80%99s-competition-enforcement-efforts-gcr-live/130917gcr
speech.pdf (“FTC consent orders are every bit as important in preserving
competition and protecting consumers as are our successful litigation
efforts.”); Joseph F. Wayland, Acting Ass’t Att’y Gen., Antitrust Div.,
U.S. Dep’t Justice, Remarks as Prepared for the Georgetown Law 6th
Annual Global Antitrust Enforcement Symposium: Litigation in the
Antitrust Division (Sept. 19, 2012), available athttp://www.
justice.gov/atr/public/speeches/287117. pdf (“In our investigations, we
generally seek to resolve our concerns about likely competitive harm
through agreement, rather than litigation.”); FED.TRADE COMMN,
BUREAU OF COMPETITION,ASTUDY OF THE COMMISSIONS DIVESTITURE
PROCESS10-11 (1999), available athttp://www.ftc.gov/sites/default/files/
attachments/merger-review/divestiture.pdf (FTC’s study of divestiture
orders from 1990 to 1994 indicates that divestiture of an entire business is
more likely to result in a viable operation than divestiture of selected
assets of the business).
3. See 15 U.S.C. §26 (“Any person, firm, corporation, or association shall
be entitled to sue for and have injunctive relief . . . against threatened loss
or damage by a violation of the antitrust laws . . . when and under the
same conditions and principles as injunctive relief against threatened
conduct that will cause loss or damage is granted by courts of
equity. . . .”).
4. See15 U.S.C. §25 (“It shall be the duty of the . . . United States
attorneys, in their respective districts, under the direction ofthe Attorney
General, to institute proceedings . . . to prevent and restrain . . . violations
[of the Clayton Act].”); 15 U.S.C. §53(b) (“Whenever . . . any person . . .
is violating, or is about to violate, any provision of law enforced by the
Federal Trade Commission . . . the Commission . . . may bring suit in a
district court of the United States to enjoin any such [violation].”). See,
e.g.,California v. American Stores Co., 495 U.S. 271 (1990).
5. 15 U.S.C. §18a.
Judicial Relief and Remedies477
monetary thresholds to the FTC and the DOJ. It imposes a mandatory
waiting period, during which the merging parties cannot consummate the
transaction, which enables the agencies to investigate and challenge a
merger before such consummation. The merger review process instituted
under the HSR Act6has allowed the federal government to act more
effectively by providing it with the relevant information before the
consummation of most mergers.7Where the information thus supplied
indicates that the transaction raises competitive concerns, the FTC or the
DOJ may seek a preliminary injunction to stop the transaction rather than
having to attempt to undo it after it has been consummated.8Agency
merger challenges are not limited to transactions that are reportable
under the HSR Act.9The agencies regularly investigate and challenge
mergers that fall below the HSR thresholds and are therefore not
notifiable.10The DOJ has encouraged parties to transactions that raise
6. Id.
7. For a detailed discussion of the premerger notification process, seeABA,
THE MERGER REVIE W PROCESS, supranote1; ABASECTION OF
ANTITRUST LAW,PREMERGER NOTIFICATION PRACTICE MANUAL(4th ed.
2007); FED.TRADE COMMN,INTRODUCTORY GUIDE ITO THE
PREMERGER NOTIFICATION PROGRAM,WHAT IS THE PREMERGER
NOTIFICATION PROGRAM? (Jan. 2002). See also2013HSR Report, supra
note 1.
8. 15 U.S.C. §18a. In addition to strengthening the agencies’ hand, the HSR
Act process helps private parties by “making it easier for businesses and
unionsto predict the consequences of mergers and to conform their
economic strategies in accordance with the probable outcome.” California
v. American Stores Co., 495 U.S. 271, 297 (1990) (Kennedy, J.,
concurring). Seepart A.1.c of this chapter for a discussion of the legal
standards that apply to preliminary injunction actions in merger cases.
9. See, e.g., Decision and Order, Hologic Inc., 2006 FTC LEXIS 46 (FTC
2006) (FTC postmerger investigation of transaction despite exemption
from the reporting obligations of the HSR Act); Aloha Petrol., Ltd.,
140F.T.C. 1195 (2005) (same); Aspen Tech., 138 F.T.C. 959 (2004)
(same); Commission Opinion and Final Order,Chicago Bridge & Iron
Co., 138F.T.C. 1024 (2004), (same), modified, 140 F.T.C. 1161 (2005),
aff’d, No. 05-60192 (5th Cir. Jan. 25, 2008), available at
http://www.ftc.gov/os/adjpro/d9300/080125opinion.pdf.
10. Leslie C. Overton, Dep. Ass’t. Att’y Gen., Antitrust Div., U.S. Dep’t of
Justice, Remarks as Prepared for the 14th Annual Loyola Antitrust
Colloquium, Institute for Consumer Antitrust Studies (Apr. 25, 2014),
available at http://www.justice.gov/atr/public/speeches/305472.pdf;
Deborah Platt Majoras, Chairman, Fed. Trade Comm’n, Remarks of FTC

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