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Practitioners and clients have long bemoaned the fact that a merger challenge by the Federal Trade Commission (FTC) is procedurally different than one by the Antitrust Division of the Department of Justice (DOJ) because the differences can have a substantive effect on the outcome of the merger challenge. Ironically, a recent loss by the FTC in a transfer motion regarding its challenge of Graco Inc.’s proposed acquisition of Illinois Tool Works Finishing LLC (ITW) might have further widened that procedural gap. F.T.C. v. Graco Inc., Civ. Action No. 11-cv-02239 (RLW), Memo. Op. (D.D.C. Jan. 26, 2012) [hereinafter “Graco”]

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