This week, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Ninth Circuit to reject the FTC’s narrow view of the proper scope of issues for consideration in a preliminary injunction hearing, and to affirm a district court’s denial of the FTC’s request for a preliminary injunction in the case FTC v. Microsoft Corp. and Activision Blizzard, Inc. 

“The Commission mistakes the district court’s adoption of the Baker Hughes burden-shifting framework for an adoption of a merits-based analysis,” said Bilal Sayyed, TechFreedom Senior Competition Counsel, former Director of the FTC’s Office of Policy Planning, and a 25-year veteran antitrust lawyer. “Yet the Baker Hughes framework remains a simple but important organizing device for allocating the burden of production of relevant evidence. Here, the Commission was simply unable to establish its prima facie case, and now it questions the district court’s role in probing its allegations.”

“Contrary to the Commission’s argument that it is owed significant deference and that courts should not seriously scrutinize its allegations, district courts frequently . . .  deny requests for a preliminary injunction in merger challenges,” Sayyed added. “Although Baker Hughes was a permanent injunction matter, its framework has been broadly endorsed by appellate courts and district courts reviewing a Commission request for a preliminary injunction. Adoption of the Commission’s views here would require district courts to ‘rubber stamp’ Commission motions for preliminary injunctions.”

“This Commission’s hostility to the procompetitive and efficiency-enhancing prospects of mergers is well-known—but the Commission’s position is not supported by merger case law,” he continued. “Under the Baker Hughes framework, courts routinely consider efficiency claims and possible procompetitive effects of mergers in reviewing FTC requests for preliminary injunctions because such claims are part of a standard competitive effects analysis.”

“Baker Hughes was written by Clarence Thomas and joined by Ruth Bader Ginsburg, both then D.C. Circuit judges, in a unanimous panel decision,” Sayyed concluded. “It’s an approach that sensible people can agree on.”

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About TechFreedom: TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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