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Ryuu96 on 05 January 2023
There is a new report from MLex about the case against the FTC and constitutional issues:
- MS and ABK have deliberately, if discreetly, raised constitutional issues in the legal briefs submitted to the FTC to preserve constitutional arguments in the event of an appeal of any action by the agency against the companies' merger.
- There are multiple constitutional challenges to the FTC's judicial authority right now, and if one succeeds, MS and ABK want to be able to capitalize.
- The cases are: Axon Enterprise, Altria-JUUL, Meta-Within, Illumina-Grail and MS/ABK. The arguments are different in each case, but all of the challenges invoke fundamental legal issues.
- Beth Wilkinson, who is currently representing Microsoft, is also one of the Altria-JUUL lawyers.
- The arguments from MS and ABK are similar to the Axon case, the FTC's administrative procedure violates: 1) the separation of powers doctrine in Article II; 2) the assignment in Article III of legal powers to the judicial branch of the federal government and 3) the Constitution's equal-protection and due-process clauses.
- The Supreme Court is also currently considering a similar case to Axon‘s regarding the Securities and Exchange Commission, the SEC v. Cochran, one where a Supreme Court verdict would affect the FTC.
- MS and ABK could raise constitutional issues during preliminary injunction proceedings, if the FTC pursues that route to prevent the transaction from closing. But because the federal district judge in the Meta-Within case threw out constitution-based defenses, the utility of such claims is open to question.
- Lanny Davis, who represented Axon in its initial lawsuit against the FTC and its appeal to the US Court of Appeals for the Ninth Circuit, says he sees a significant difference in the approaches of MS and Axon: Axon immediately filed a lawsuit in US District Court claiming the FTC's administrative court process was unconstitutional, while MS and ABK merely catalogued the constitutional issues at the bottom of their briefs opposing the FTC's decision.
As Beth Wilkinson said on Monday, it looks like they are preparing for all options.
- MS and ABK have deliberately, if discreetly, raised constitutional issues in the legal briefs submitted to the FTC to preserve constitutional arguments in the event of an appeal of any action by the agency against the companies' merger.
- There are multiple constitutional challenges to the FTC's judicial authority right now, and if one succeeds, MS and ABK want to be able to capitalize.
- The cases are: Axon Enterprise, Altria-JUUL, Meta-Within, Illumina-Grail and MS/ABK. The arguments are different in each case, but all of the challenges invoke fundamental legal issues.
- Beth Wilkinson, who is currently representing Microsoft, is also one of the Altria-JUUL lawyers.
- The arguments from MS and ABK are similar to the Axon case, the FTC's administrative procedure violates: 1) the separation of powers doctrine in Article II; 2) the assignment in Article III of legal powers to the judicial branch of the federal government and 3) the Constitution's equal-protection and due-process clauses.
- The Supreme Court is also currently considering a similar case to Axon‘s regarding the Securities and Exchange Commission, the SEC v. Cochran, one where a Supreme Court verdict would affect the FTC.
- MS and ABK could raise constitutional issues during preliminary injunction proceedings, if the FTC pursues that route to prevent the transaction from closing. But because the federal district judge in the Meta-Within case threw out constitution-based defenses, the utility of such claims is open to question.
- Lanny Davis, who represented Axon in its initial lawsuit against the FTC and its appeal to the US Court of Appeals for the Ninth Circuit, says he sees a significant difference in the approaches of MS and Axon: Axon immediately filed a lawsuit in US District Court claiming the FTC's administrative court process was unconstitutional, while MS and ABK merely catalogued the constitutional issues at the bottom of their briefs opposing the FTC's decision.
As Beth Wilkinson said on Monday, it looks like they are preparing for all options.
