17 Antitrust Bull. 1 (1972)

handle is hein.journals/antibull17 and id is 1 raw text is: PRELIMINARY INJUNCTIONS IN            GOVERNMENT
SECTION     7 LITIGATION
by
GRANT S. LEWIS*
There is considerable conflict among the district courts
as to the burden the government must carry on motions
for preliminary injunctions in Section 7 cases. The Expe-
diting Act,' however, has generally been construed to pre-
vent the courts of appeals from performing their tradi-
tional role of resolving these inconsistent district court
decisions.2 The likelihood of success or defeat on a motion
for a preliminary injunction in a government Section 7 case
will depend far more on the philosophy of the judge who
happens to hear the motion than on a showing that one
comes within an established rule. It is likely that the Ex-
pediting Act will be amended in the near future and that,
among other things, decisions on motions for preliminary
LeBoeuf, Lamb, Leiby & MacRae, New York, New York. The
author wishes to express his gratitude to H. Richard Wachtel for his
guidance and advice.
1 15 U.S.C. 29 (1964).
2 Interlocutory orders of the district courts granting or denying
injunctions are reviewable by courts of appeal except where a direct
review may be had in the Supreme Court. 28 U.S.C. 1292(a) (1)
(1964). Section 2 of the Expediting Act provides that where the
government files an antitrust action in which equitable relief is sought
an appeal from the final judgment of the district court will lie only
to the Supreme Court. 15 U.S.C. 29 (1964). Since the government
necessarily seeks equitable relief in Section 7 litigation, provision is
thereby made for direct review of the final judgment in such actions
to the Supreme Court and interlocutory appeals are held to be pro-
scribed. United States v. Cities Serv. Co., 410 F.2d 662 (1st Cir.
1969); United States v. FMC Corp., 321 F.2d 534 (9th Cir.), appl.
denied, 84 S. Ct. 4 (1963). See, United States v. California Coopera-
tive Canneries, 279 U.S. 553 (1929). Contra, United States v. Inger-
soll-Rand Co., 320 F.2d 509 (3d Cir. 1963) (order entering prelimi-
nary injunction held to be reviewable; both parties urged that the
court of appeals could hear the appeal).

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