Antitrust Law Daily Wrap Up, STRATEGIC PERSPECTIVES: The SMARTER Act and its impact on federal merger enforcement, (Dec 11, 2015)
Organizations Mentioned:American University | Boston College
By Jeffrey May, J.D.
Responding to the current surge in merger activity, federal lawmakers are considering legislation that would eliminate differences in the procedures used by the FTC and the Department of Justice Antitrust Division in challenging unconsummated acquisitions and mergers.
The proposed “Standard Merger and Acquisition Reviews Through Equal Rules Act of 2015” or “SMARTER Act” is intended to address concerns that parties to a proposed merger or acquisition currently face different preliminary injunction standards in court challenges, as well as different processes, depending upon which federal antitrust agency reviews the transaction.
The so-called SMARTER Act (S. 2102, H.R. 2745) has two main objectives: (1) equalize the standards for the two federal antitrust agencies for obtaining a preliminary injunction against a proposed merger or acquisition and (2) eliminate the FTC’s ability to pursue administrative adjudication to challenge a proposed transaction. In effect, it would attempt to standardize the processes used by the two agencies to block a proposed merger or acquisition that raises competitive concerns. It would not impact FTC challenges to consummated mergers or other antitrust violations or current Justice Department procedures.
A detailed paper, considering the SMARTER Act and how it would transform the FTC’s merger enforcement program, is available here.
Jeffrey May, J.D. is a Senior Legal Analyst with Wolters Kluwer Legal & Regulatory Solutions U.S., where he has been tracking, analyzing, and writing about antitrust and trade regulation law for more than 20 years. He edits the CCH Trade Regulation Reporter and is a frequent contributor to WK’s Antitrust Connect blog and Antitrust Law Daily. A member of the Illinois and Pennsylvania bars, Jeff is a graduate of American University and Boston College Law School.
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