FTC Merger Enforcement after CCC/Mitchell: A Response to Slater

The Threshold, Vol. 10, No. 1, Fall 2009

13 Pages Posted: 23 Nov 2009  

Darren S. Tucker

Morgan Lewis & Bockius LLP

Date Written: Fall 2009

Abstract

In March 2009, the D.C. District Court enjoined the proposed merger between automobile insurance software system providers CCC Information Services and Mitchell International, resulting in the parties abandoning the transaction. The case marked the FTC’s first district court victory in a merger case in almost seven years. More importantly, the decision may suggest that the agency is now in a stronger position to halt mergers in federal court. The agency persuaded the district court to adopt a somewhat lower preliminary injunction standard predicated on the DC Circuit’s Whole Foods decision. While it is difficult to discern the precise standard the CCC court applied, it is reasonably clear that the court did not require the agency to establish a likelihood of success at the plenary trial or under Section 7 of the Clayton Act. Nevertheless, the court’s competitive effects analysis indicates that the FTC’s burden is not insubstantial and that district courts will continue to scrutinize the agency’s evidence and carefully consider the merging parties’ rebuttal evidence before granting a preliminary injunction.

Keywords: Antitrust, FTC, Federal Trade Commission, Preliminary Injunction

JEL Classification: k21, l40, l41, l49

Suggested Citation

Tucker, Darren S., FTC Merger Enforcement after CCC/Mitchell: A Response to Slater (Fall 2009). The Threshold, Vol. 10, No. 1, Fall 2009. Available at SSRN: https://ssrn.com/abstract=1510375

Darren S. Tucker (Contact Author)

Morgan Lewis & Bockius LLP ( email )

1111 Pennsylvania Ave NW
Washington, DC 20004
United States

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