The Federal Trade Commission (“FTC”) may challenge conduct when it has “reason to believe” that a violation of the laws that the FTC enforces has occurred. The agency does so by filing an administrative complaint, which is adjudicated before an administrative law judge, much like a trial proceeding, albeit utilizing the rules of practice adopted by the FTC.

In addition, to assist the FTC in its enforcement efforts, section 13(b) of the Federal Trade Commission Act empowers the FTC to seek preliminary and permanent injunctive relief in a federal district court. The FTC uses section 13(b) primarily for the purpose of obtaining preliminary injunctive relief against corporate mergers or acquisitions pending completion of an FTC administrative proceeding. A decision by a federal district court on the FTC’s request for injunctive relief is immediately appealable to the court of appeals.

So, what happens when the FTC loses its effort to seek a preliminary injunction? Under the FTC’s 1995 Policy Statement regarding Administrative Merger Litigation Following the Denial of a Preliminary Injunction (“1995 Policy Statement”), the FTC makes a case-by-case decision about whether proceeding with the administrative litigation is in the public interest. In making this decision, the FTC considers the following five factors:

  1. the factual findings and legal conclusions of the district court or any appellate court;
  2. any new evidence developed during the preliminary injunction proceeding;
  3. whether the transaction raises important issues of fact, law, or merger policy that need resolution in administrative litigation;
  4. an overall assessment of the costs and benefits of further proceedings; and
  5. any other matter that bears on whether it would be in the public interest to proceed with the merger challenge.

In 2015, while making certain changes to related rules of practice, the FTC reiterated its commitment to the 1995 Policy Statement and a continuation of its case-by-case analysis regarding whether to continue with an administrative proceeding after being denied a request for injunctive relief.