Antitrust Lawyer Blog Commentary on Current Developments

FTC ANNOUNCES THE END OF LITIGATION IN THE WESTERN REFINING CASE

On October 3, 2007, the Federal Trade Commission announced that it will not continue with administrative litigation challenging Western Refining, Inc.’s acquisition of Giant Industries, Inc. The vote to dismiss the administrative complaint was 3-2.
Originally, the FTC had voted to attempt to block the proposed acquisition in April 2007, and filed complaints before both a federal district court and an FTC administrative law judge. The U.S. District Court for the District of New Mexico heard the case and denied the FTC’s motion for a preliminary injunction. A motion for an injunction pending appeal in the U.S. Court of Appeals was then filed but the court denied the motion. The FTC withdrew the matter on June 7, 2007, citing a need to evaluate public interest in further proceedings.

The FTC eventually decided that the continuation of this case was not in the public’s interest. However, the FTC’s majority statement made known its strong disagreement with the district court’s stance on the facts of this case and with many of its legal conclusions. Further, Commissioners Harbour and Rosch dissented from the decision to dismiss the administrative complaint. The commissioners’ dissent statement again cited significant factual and legal errors with the district court’s opinion dismissing the motion for a preliminary injunction. They maintain that the district court’s opinion was hasty and failed to wholly address the issues. Specifically, the statement said, “We do not consider a preliminary injunction hearing to be any substitute for a plenary trial in this respect.”

Robert Doyle
(202) 589-1834
rdoyle@dbmlawgroup.com