The SMARTER Act: Pros, Cons, and Prospects of Restructuring the U.S. Merger Review Process

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If enacted by Congress, the SMARTER Act would restructure the U.S. merger review process by altering the standards for obtaining a preliminary injunction against a proposed merger and eliminating the Federal Trade Commission’s adjudicative function in certain merger cases.  Is that a good thing or a bad thing?  Is the Act needed or is it just re-arranging the deck chairs?

The House Judiciary Committee approved the Standard Mergers and Acquisition Reviews Through Equal Rules (SMARTER) Act on September 30, 2015 as H.R. 2745, by a bipartisan vote of 18-10.  (A similar bill is pending before the Senate Committee on the Judiciary as S. 2012).  At hearings on bills, the FTC Chairman Edith Ramirez and the spokesman for the American Antitrust Institute testified against the bill, while several practitioners including Deborah Garza, the former chair of the Antitrust Modernization Commission, testified in favor.

This topic is of importance to the antitrust community because it goes to the heart of our two-agency system.  Concerned practitioners, both in-house and outside, as well as business executives need to know what the justifications are for the changes as well as the practical consequences of the bill if enacted.  This program will explore the pros and cons of the Act and the prospects for enactment and implementation.

Educational Objectives:
• Learn how the current merger review process works
• Evaluate whether there is (or is not) a need to change that process
• Understand what the likelihood of enactment is
• Analyze how the SMARTER Act could actually affect mergers

Who would benefit most from attending this program?
In-house counsel responsible for antitrust counseling and/or M&A transactions; outside antitrust practitioners; M&A transaction lawyers; business executives responsible for M&A deals

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William M. Hannay, Partner, Schiff Hardin LLP

Mr. Bill Hannay concentrates his practice in antitrust and trade regulation at the Chicago-based law firm, Schiff Hardin LLP.  He is an Adjunct Professor at Chicago-Kent law school and the author or editor of nine books on antitrust and unfair competition, including two Bloomberg BNA portfolios: Tying Arrangements (No. 39-3rd) and U.S. International Antitrust Enforcement (No. 53-3rd).  He regularly represents businesses in the antitrust aspects of mergers and acquisitions.


Anthony Grossi, Counsel, U.S. House Committee on the Judiciary

Mr. Anthony Grossi is a counsel for the House Judiciary Subcommittee on Regulatory Reform, Commercial and Antitrust Law.  He is primarily responsible for antitrust and bankruptcy issues, including the drafting and legislative administration of the proposed SMARTER Act.  Prior to joining the Committee, Mr. Grossi was an associate with Kirkland & Ellis LLP in New York.


Steven J. Cernak, Of Counsel, Schiff Hardin LLP

Mr. Steve Cernak had more than 20 years of in-house experience in the antitrust area at General Motors Corporation before joining Schiff Hardin LLP in its Ann Arbor office.  He is Co-Chair of the Antitrust Council of the U.S. Chamber of Commerce and, as such, has been working on the SMARTER Act for several years.  He also serves as a Council Member for the ABA Antitrust Section.  He has taught courses on antitrust and in-house counsel at the University of Michigan, Wayne State, and Thomas M. Cooley law schools.