Insights

The Supreme Court yesterday heard oral arguments in Axon Enterprises v. The Federal Trade Commission and Securities and Exchange Commission v. Cochran, both of which present the question whether parties to administrative enforcement actions can promptly challenge the authority and structure of the agencies in federal district courts, or must await the conclusion of the administrative proceedings to raise their objections in the courts of appeals, as is provided for in the FTC Act, the Securities Exchange Act, and the Administrative Procedures Act. The two cases come at a time when the Supreme Court has been receptive to complaints about administrative agency authority and at least some of the justices appeared ready to clear the way for Axon and Cochran to return to the district courts to pursue their wide-ranging challenges to the authority of the FTC and SEC, respectively. 

The DOJ and FTC announced on Tuesday that they are jointly reviewing the most recent versions of both the Horizontal and Vertical Merger Guidelines, and invited public comments on a wide range of issues detailed in a lengthy Request For Information. The RFI itself and the announcement of the review signal that the agencies are aligned in making significant changes to the merger guidelines, both to expand the scope of issues covered by the guidelines and to reflect an approach rooted in older case law that would support much more stringent merger scrutiny and enforcement.