With the Republicans gaining control of the Senate in
yesterday's elections, there is a greater chance that Congress
may enact reforms to the merger approval process. Currently,
there is a bill pending in the House that would unify merger
preliminary injunction standards at the Department of Justice and
Federal Trade Commission. The bill, known as the Standard Merger and Acquisitions Review Through
Equal Rules Act ("SMARTER"), has passed out of
committee in the House. It is widely believed that the bill
is more likely to pass the Senate under Republican
control.
Currently, DOJ and FTC have separate standards for blocking a
merger. The DOJ must show irreparable harm in order to obtain
a preliminary injunction, but the FTC only has to show that
blocking the deal with be in the public interest. The bill
would require both agencies to meet the traditional irreparable
harm standard. An interesting Law360 article was published about the SMARTER
bill and other antitrust and consumer protection reforms that may
result from the 2014 elections and Republican control of the
Senate.
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