It appears that in United States v. JBS, S.A., the government is using the same tactics that it did in United States v. UPM-Kymmene Oyj — both of which were brought in the United States District Court for the Northern District of Illinois.   The government is hoping to kill the deal by trying to delay the case and seeking to avoid a consolidated trial on the merits with a preliminary injunction hearing.  If the preliminary injunction hearing is not consolidated, the government can prevail by only showing that there is a serious question going to the merits rather than by a preponderance of evidence.  This approach will allow the government to avoid proving its case at trial because as the parties have made clear, a preliminary injunction will kill the deal.  They will not wait for a trial at a later date.

UPM was successful in obtaining a prompt preliminary injunction hearing because UPM was not required to consent to an extension of the temporary restraining order.  Notwithstanding that Section 15 of the Clayton Act and the legislative history of the HSR Act support a prompt consolidated trial on the merits as the Clayton Act directs that “the trial shal be as soon as may be” and the HSR Act was enacted to “promote the legitimate interests of business community”  as well as the nearly uniform line of cases that consolidated such proceedings, the UPM Court did not do so.   As the parties had promised, they abandoned the merger after the preliminary injunction was granted.  Thus, UPM further supports the proposition that consolidation is the most practical approach because as numerous courts have observed, a preliminary injunction will kill the deal.

It is regrettable that the government chooses to engage in these tactics rather than allow a court to decide the merits.