Assessing Recent FTC Merger Litigation: One Win, One Loss, and One Tie

The Federal Trade Commission, which appeared to be in the midst of a losing streak with respect to merger challenges as early as last summer, has worked its way back to a more respectable ratio of wins and losses.  FTC challenges to mergers of entities as diverse as natural gas utilities, organic grocery stores, and hospitals have raised a host of issues that are likely to impact merger practice for years to come.  Equitable Resources/Peoples Natural Gas was a (belated) victory for antitrust enforcement in regulated industries, Whole Foods/Wild Oats was a defeat (for now) for narrow market definitions, and Evanston Northwestern/Highland Park proved that a challenge to a consummated hospital merger could succeed... though the nature of the remedy has caused critics to question the value of that victory.  What do these three cases tell us about the state of current FTC merger practice?  Is the Commission challenging the right transactions and protecting consumers?  Are the courts functioning as an unnecessary obstacle to merger enforcement or an appropriate check on agency authority?  Join our panel of experts for a discussion of these issues and more. Audio and video recorded on June 5, 2008.

Panelists:

• Mr. John T. Delacourt, Kelley Drye & Warren LLP
• Mr. Paul T. Denis, Dechert LLP
• Mr. Chul Pak, Wilson, Sonsini, Goodrich & Rosati
• Mr. Edwin S. Rockefeller, author of The Antitrust Religion and former head of the American Bar Association's Antitrust Law Section
• Moderator: Ms. Margaret A. Ward, Jones Day