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The FTC’s First Loss in Nearly Half a Decade, Illuminating the Difficulties of Prediction and the Merits of Litigating It

Alicia J. Batts, Christopher E. Ondeck, Colin Kass, John R. Ingrassia, and David A. Munkittrick, Client Alert, October 14, 2015

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"Prophesy is a good line of business, but it is full of risks." Mark Twain could have been speaking about the FTC’s recent challenge to a merger between the second- and third-largest sterilization companies in the world, Steris Corporation and Synergy Health. FTC v. Steris Corp., 2015 WL 5657294 (N.D. Ohio 2015). However, for the first time in four years, the FTC’s bid for a preliminary injunction was denied. The FTC argued it had enough evidence to show the merger would have harmed competition in the future, but the court found there were too many uncertainties to support the FTC’s prophecy. After the defeat, the FTC announced it would not appeal the decision, and last week, it withdrew its challenge to the Steris-Synergy merger. While one loss is not a trend, it cannot be said that the government always wins.

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