The FTC's filing fails to provide any basis to expect that it will prevail on a single issue on appeal, much less run the table on the multiple findings it would have to reverse to prevail. See Cascadia Wildlands v. Thrailkill, 806 F.3d 1234, 1240 (9th Cir. 2015) (appellate review of an order denying a motion for preliminary injunction "is limited and deferential"). Specifically, as we will explain to the Ninth Circuit, the FTC does not identify a single legal error in this Court's reasoning, nor any reason to think that any of the complaints they lodge would have changed the outcome.
Further, the Court has already found that it would be inequitable to enter an injunction that could lead to "the potential skuttling of the merger," and that this inequitable result was "a separate, independent reason the FTC's motion must be denied." Op. 51–52. The FTC's new request to enjoin the merger for the months (or more) that it will take for the Ninth Circuit to hear and decide this appeal would have the same effect. The Court's opinion was cognizant of the potential for appellate review and the competing need for finality in advance of July 18. It therefore left the TRO in place long enough for the FTC to seek relief pending appeal, while at the same time shortening the TRO already in place by three days, in apparent recognition that any appellate relief would have to be sought expeditiously and without prejudice to the parties' ability to close the transaction. Compare Op. 53, with Dkt. 37. That the FTC wasted nearly 75% of the time the Court allowed is not a reason to reconsider.
The FTC also asks, in the alternative, that this Court enter an injunction until after the Ninth Circuit has ruled on the FTC's motion for a stay pending appeal that it intends to file "contemporaneously" in the appellate court. Dkt. 313 (Notice of Motion). Although the FTC has not yet filed its motion in the Ninth Circuit, the FTC has informed the appellate court that it will seek a decision on that request prior to the expiration of the TRO tomorrow evening. Defendants have also made clear to the Ninth Circuit clerk that they will file an opposition to that motion as soon as is practicable so the Court will have full briefing before the TRO expires. There is thus no reason for this Court to enter a temporary injunction pending the Ninth Circuit's decision—the existing TRO already serves that purpose.
This is what the FTC looks like right now. https://t.co/QAfmQrwpyP pic.twitter.com/YCNftJf2Yp
— Paul Thurrott (@thurrott) July 13, 2023
