Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The Department of Justice (DoJ) has primarily an enforcement role rather than a regulatory approval role in the area of mergers and acquisitions. Thus the Attorney General, who heads the DoJ, must turn to the Federal courts in order to obtain an injunction to block a merger.
Because the DoJ and the FTC share enforcement responsibility for Section 7 of the Clayton Act, clearance conflicts frequentl …

The DoJ

The Department of Justice (DoJ) has primarily an enforcement role rather than a regulatory approval role in the area of mergers and acquisitions. Thus the Attorney General, who heads the DoJ, must turn to the Federal courts in order to obtain an injunction to block a merger.

Because the DoJ and the FTC share enforcement responsibility for Section 7 of the Clayton Act, clearance conflicts frequently arise. The clearance procedure attempts to ensure that matters will be handled by the agency with the most experience in a particular area.

Prior to initiating an investigation, each agency will seek clearance from the other. Where there is a dispute as to expertise, the staff prepares a file outlining agency experience in handling such claims within the past five years, giving greater weight to matters involving litigation. Under these procedures, clearance for investigations should be completed in all cases within 9 business days of the date of filing.

Section 13(b) of the F TCA empowers the FTC to seek a preliminary injunction in Federal Court for a violation of Section 7 of the Clayton Act. Nevertheless, the courts do not ordinarily take a final decision on the merits in cases involving the FTC. In such cases, a final decision on the merits is ordinarily made in an administrative proceeding before the FTC reviewable by a court of appeals. The FTC does, however, have discretion under Section 13(b) to ask the court to resolve the matter on the merits and to issue a permanent injunction.

The FTC has authority to issue implementing regulations and forms regarding mergers (18 U.S.C. § 18a(d)).

The FTC

The Federal District Courts have jurisdiction over merger cases involving challenges under Federal law. Both the enforcement agencies and private parties may seek injunctive relief in Federal District Court (15 U.S.C. § 26). Damages are also available in civil actions in the Federal District Courts. This is in contrast to administrative proceedings before the FTC, where no damages are available.

Section 4 of the Clayton Act allows persons injured “by reason of anything forbidden in the antitrust laws” to bring suit and recover three times the damages sustained where they are successful. Likewise, Section 16 of the Clayton Act allows private parties to sue for injunctive relief for violations of the antitrust laws. These provisions have been construed to allow private parties to bring suit in Federal District Court to block a merger.

Commentators have noted that there is a danger that the ability of private parties to block a merger can be used strategically. This danger has been limited to some extent by the requirement that a private plaintiff suffer an antitrust injury. Given that a merger can have both pro and anticompetitive aspects, the courts have held that only those private parties injured by the anticompetitive aspects of a merger can sue to enjoin it (Brunswick Corp. v. Pueblo Bowl-O-Mat (429 U.S. 477 (1977)).

The Federal District Courts

Although the FTC and the DoJ are the main enforcement agencies in merger control, the Supreme Court recognized that the Clayton Act authorizes State Attorneys General to pursue injunctive relief, including divestiture and rescission for mergers that violate Section 7 of the Clayton Act (California v. American Stores Co, 495 U.S. 271 (1990)). Moreover, certain States have enacted specific laws prohibiting anticompetitive mergers and authorizing their State Attorneys General to challenge them. When States have used their own laws to challenge mergers, their exercise of authority has survived the challenges of the Supremacy Clause of Article VI, Clause 2, of the US Constitution (State v. Coca-Cola Bottling Co, 697 S.W.2d 677 (Texas Ct. App. 1985)). Section 4c et seq. of the Clayton Act (15 U.S.C. §§15c et seq.) is the main provision granting State Attorneys General with standing to challenge antitrust laws, including the Clayton Act.

A transaction may thus be investigated at both Federal and State levels. The Protocol for Coordination in Merger Investigation Between the Federal Enforcement Agencies and State Attorneys General (1998) has been adopted to set forth a general framework for the conduct of joint investigations in order to maximize cooperation between Federal and State agencies and to minimize the burden on the parties.

Finally, States may control a merger even if Federal agencies did not object to the transaction. State Attorneys General may also seek different or additional remedies from the parties than those of the Federal agencies. They may also pursue negotiations or investigating strategies different from those of the other agencies.

Global Competition Law

1480. The DoJ

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Les notions juridiques connexes

1480. The DoJ

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Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise