Corporate & Securities Law

Section 13(b) after WholeFoods and CCC

By Hanno Kaiser

Here is a chart with the Section13(b) preliminary injunction standard after FTC v. WholeFoods and FTC v. CCC Holdings. It is troubling that the statutory “likelihood of ultimate success” standard has been watered down to a mere raising of “serious, substantial” questions. Not only because that standard is almost pointlessly low (it is), but also because it gives the arbitrary, evolving, and in many cases ex ante unpredictable clearance to FTC or DOJ an outcome-determinative significance. That is not a rational process.

Full post as published by Antitrust Review on August 09, 2009 (boomark / email).