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”]

The primary procedural difference between the agencies’ merger challenges is that a challenge by the DOJ involves a single federal lawsuit where all issues, including question of injunctive relief and the merits, are decided by a single judge in a single court. A merger challenge by the FTC, however, involves both an injunctive relief action in federal court seeking to block the proposed transaction and an administrative complaint wherein a different judge (an administrative law judge specializing in antitrust) will render a decision on the merits. Therefore, battling an FTC merger challenge means fighting on two fronts (unless the parties elect to consent to a PI). The FTC has argued—with varying levels of success—that this procedural difference, and the fact that the injunctive proceeding is not decided by the administrative law judge (ALJ) who will decide the merits, means that the FTC has a lower standard in obtaining injunctive relief than the DOJ.

In addition to the arguably different legal standard, the FTC now may be able to argue that it also has broader jurisdictional powers than the DOJ, based on a recent ruling by Judge Robert Wilkins regarding Graco’s proposed acquisition of ITW. Id. In Graco, the FTC sued in administrative court to block the proposed acquisition based on the Clayton Act and the FTC Act. At the same time, the FTC brought suit in the U.S. District Court for the District of Columbia to enjoin the merger during the pendency of the administrative action. The parties immediately moved to dismiss or transfer the case, arguing, among other things, that Washington, D.C.,did not have jurisdiction over Graco and that, in any event, the District of Minnesota was a more appropriate forum. 

In the jurisdictional dispute, the FTC did not attempt to show that it had jurisdiction over Graco in Washington ,D.C., based on the traditional “minimal contacts” analysis. Instead, the FTC argued that Graco’s connection to DC was irrelevant because FTC Act Section 13(b), which is the statute that enables the FTC to seek a PI, has a national service provision. According to FTC, when combined with Federal Rule of Procedure 4(k)(1) —which provides that service pursuant to a federal statute establishes personal jurisdiction—13(b) gives courts everywhere in the country personal jurisdiction over any defendant that the FTC names in an FTC Act suit. The FTC further contended that because 28 U.S.C § 1391(c) states that a corporation “reside[s]” wherever it is subject to personal jurisdiction and because 28 U.S.C. §1391(b) says venue is proper wherever a corporation “resides,” venue is also appropriate wherever the FTC chooses to bring suit. Defendants, in turn, argued that Section 13(b) specifically says that a suit can be brought wherever venue is appropriate. If Congress intended venue to be appropriate anywhere the FTC chooses to bring suit, the statute would not have been written with venue as a condition for where a suit can be brought. 

While Judge Wilkins expressed skepticism over the FTC’s position at the hearing, he decided not to rule on the issue, thus leaving open whether the FTC Act allows the FTC to avoid making a showing of proper venue—something the DOJ must obviously do in every case. Judge Wilkins did, however, hinge his decision on the FTC Act and thereby possibly created yet another difference between the agencies’ merger litigation powers. Judge Wilkins ruled that because the FTC brought the case under both the Clayton and the FTC Act, jurisdiction over both parties was appropriate even if the FTC could only properly allege personal jurisdiction over the target (here ITW). This is not true in the DOJ setting. 

As Judge Wilkins noted, Section 7 only prohibits acquiring another entity if the acquisition may tend to substantially lessen competition, so the prohibition “is directed only to the acquiring party.” Graco at 5. As a result, a Section 7 case requires that the court have jurisdiction over the acquiring party. Thus, because the District of Columbia did not have jurisdiction over Graco, a purely Section 7 case, such as one brought by the DOJ to enjoin a merger, would not be sustainable in DC. According to Judge Wilkins, a suit brought by the FTC is different because the FTC Act does not just focus on the acquirer. After concluding that jurisdiction over ITW was appropriate in DC, Judge Wilkins indicated that such jurisdiction over the seller was enough to create jurisdiction over both parties because Section 13(b) states that “the court may, if the court determines . . . that any other person . . . should be a party in such suit, cause such other person . . . to be added as a party without regard to whether venue is otherwise proper.” Judge Wilkins thus concluded that the court had jurisdiction and that venue was proper as to Graco—the acquirer—because the court had personal jurisdiction over ITW. This result would not have been possible if the case had been brought by the DOJ because the DOJ does not have enforcement authority under the FTC Act. 

Because Judge Wilkins went on to grant the transfer and because the FTC entered an Order on March 13, 2012 withdrawing the matter from adjudication for the purpose of considering a proposed consent agreement, the decision regarding jurisdiction and venue is not likely to be appealed. As a result, the FTC now has a judicial decision on which it can base future efforts to bring merger cases in districts where there is personal jurisdiction over the target but not the acquirer. The DOJ cannot do so.