Preliminary Injunctions in Government Section 7 Litigation

DOI10.1177/0003603X7201700101
Date01 March 1972
AuthorGrant S. Lewis
Published date01 March 1972
Subject MatterArticle
PRELIMINARY INJUNCTIONS IN GOVERNMENT
SECTION 7 LITIGATION
by
GRANT
S.
LEWIS·
There is considerable conflict among the district courts
as to the burden the government
must
carryon
motions
for
preliminary injunctions in Section 7 cases. The Expe-
diting Act,' however, has generally been construed to pre-
vent the courts of appeals from
performing
their
tradi-
tional role of resolving these inconsistent district court
decisions." The likelihood of success
or
defeat on a motion
for
apreliminary injunction in a government Section 7 case
will depend
far
more on the philosophy of the judge who
happens to
hear
the motion than on a showing
that
one
comes within an established rule.
It
is likely
that
the
Ex-
pediting Act will be amended in the
near
future
and
that,
among other things, decisions on motions
for
preliminary
LeBoeuf, Lamb, Leiby &MacRae, New York, New York. The
author
wishes to express his gratitude to H. Richard Wachtel for his
guidance
and
advice.
115 U.S.C. §29 (1964).
:.I Interlocutory orders of the district courts
granting
or denying
injunctions are reviewable by courts of appeal "except where a direct
review
may
be
had
in the Supreme Court." 28 U.S.C. §1292(a) (1)
(1964). Section 2 of
the
Expediting
Act
provides
that
where the
government files an
antitrust
action in which equitable relief is sought
"an
appeal from the final judgment of the district court will lie only
to
the
Supreme Court." 15 U.S.C. §29 (1964). Since the government
necessarily seeks equitable relief in Section 7 litigation, provision is
thereby made
for
direct review of the final
judgment
in such actions
to
the
Supreme Court
and
interlocutory appeals are held to be pro-
scribed. United States v. Cities Servo Co., 410
F.2d
662 (1st Cir.
1969); United States V. FMC Corp., 321
F.2d
534 (9th Cir.), appl.
denied, 84 S. Ct. 4 (1963). See, United States v. California Coopera-
tive Canneries, 279 U.S. 553 (1929). Contra, United States v. Inger-
soll-Rand Co., 320
F.2d
509 (3d Cir, 1963) (order entering prelimi-
nary
injunction held to be reviewable; both parties urged
that
the
court of appeals could
hear
the appeal).
1
2
THE
ANTITRUST
BULLETIN
injunctions in government Section 7cases will be subject
to appellate review."
It
would seem
appropriate
therefore
to study the standards
that
heretofore have been employed
by the
district
courts in determining such motions
and
to
consider those which ought to be employed in the future.
Box Score.
Between 1914 and 1955, the government filed twenty-one
Section 7suits and moved preliminarily to enjoin the ac-
quisition" in two of them,"
During
the
last
sixteen years,"
167 government Section 7suits have been filed?
and
the gov-
ernment
has
so moved in fifty of them," The government was
8
In
the 91st session of Congress, H.R. 12807,
after
being amended
by House of Representatives'
Judiciary
Committee, was passed by
the
full House on
July
6, 1970.
It
was
further
amended by the Senate
Judiciary
Committee
and
then passed by the Senate on September
25, 1970. Although conferees were appointed by both bodies, the ses-
sion closed before the conferees could meet. The bills as passed
amended Section 2 of the Expediting
Act
and
provided
that
direct
appeal to the Supreme Court from final orders in government anti-
trust
suits in which equitable relief is sought would lie only in cases
of "general public importance in the administration of justice"
and
that
appeals from interlocutory orders in
antitrust
cases could be taken
to the courts of appeals
pursuant
to 28 U.S.C. §§1292
and
2107.
4Throughout this article, the word "acquisition" is used without
regard
to whether the transaction being considered was
structured
as an acquisition, a merger, or in some other way.
SUnited States v. Republic Steel Corp., Eq. No. 5152 (N.D. Ohio
1935) jUnited States v. Rand Kardex Bureau, Inc., Eq. No. E. 39-14
(S.D.N.Y.1926). No opinion was written in either case. The
writer
has relied on Merger Case Digest (1971) for information concerning
these
and
certain other unreported motions or decisions.
6Through December 31, 1971.
7Suits challenging bank acquisitions filed
after
the passage of the
Bank
Merger
Act
of 1966 are
not
included in these figures.
Pursuant
to 12 U.S.C. §1828(c) (7)
(A),
the commencement of an action
under
the
antitrust
laws automatically stays consummation of the acquisi-
tion.
8
In
certain other cases, the willingness of the parties to the acqui-
sition to postpone their plans
after
agovernment motion was threat-
ened obviated the need for the government to seek preliminary relief.

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