2014 Elections May Lead To Changes In Antitrust Merger Review

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