| Mergers & Acquisitions Primer |
|
Enforcement Procedures and Relief
DOJ
Pursuant to Section 15 of the Clayton Act (15 U.S.C. § 25), DOJ may challenge proposed mergers by seeking an injunction in federal court. In the case of a merger that has been consummated, the DOJ will typically request relief in the form of a total or partial divestiture of assets or other behavioral relief.
FTC
The FTC typically challenges proposed mergers by seeking a preliminary injunction in federal district court pursuant to Section 13(b) of the FTC Act (15 U.S.C. § 53(b)). Under Section 13(b), a district court may grant a temporary restraining order or preliminary injunction to prevent consummation of the proposed merger pending the issuance of an administrative complaint by the FTC and completion of FTC administrative proceedings. The court is required to dissolve the order or injunction if the FTC does not issue it administrative complaint within the period specified by the court (not to exceed 20 days).
The FTC is also authorized to adjudicate the legality of mergers and other challenged Clayton Act violations under Section 11 of the Clayton Act (15 U.S.C. § 21). Administrative merger enforcement begins when the FTC issues and serves a complaint on the parties. Where a merger is found to violate Section 7 of the Clayton Act, the FTC is empowered to issue "cease and desist" orders. The FTC may also order the divestiture of assets acquired in violation of Section 7, as well as behavioral relief.
Copyright 1999
Robert W. Doyle, Jr.
