The FTC's Henkel/A-Paint Challenge: A Paradigm Shift For Future FTC Merger Litigation?

Introduction

In a notable departure from past practice, the Federal Trade Commission (FTC) filed suit in federal district court on December 15, 2025, to permanently enjoin Henkel AG & Co. KGaA and its subsidiaries (Henkel) from acquiring A-Paint Topco, Inc. (A-Paint).¹Historically, the FTC has asked federal courts only to preliminarily enjoin challenged transactions pending full adjudication on the merits before the FTC's own administrative tribunal—a process often called "Part 3" litigation. The FTC's decision in Henkel to shift tactics and seek a permanent injunction from a federal court without pursuing a parallel administrative action has broad implications for the Henkel proceeding and follows statements from FTC Chair (then Commissioner) Andrew Ferguson expressing concern over the constitutionality of litigating private rights in administrative actions generally.² Insofar as the FTC's decision in Henkel signals a permanent shift in the FTC's litigation