I think the judge is saying they bungled the case so bad that an appeal will be a waste of the courts time. Sounds like the warning is more of an admonishment to the DOJ for wasting the courts time with confusing and unconvincing case.
Well, this judge would decide that motion, so it seems like he's told them they would be wasting their time. The realistic options are (1) file for a say ASAP with an eye toward asking the court of appeals to grant the stay after this judge denies it, (2) keep litigating after the deal goes through, or (3) admit defeat. I'm no expert in #1 but I assume it is also very unlikely to work in time to stop the merger (otherwise I think the DOJ would have gone that route).
That leaves litigating after the merger goes through, or just giving up. Often the FTC or DOJ will chose not to keep litigating mergers if they lose in district court because even if they win later, they don't think they will be able to get a very effective remedy--the deal will have gone through and it won't be possible to put everything back to the way it was. (If you are an antitrust lawyer, you for some reason have to talk about this using the phrase "you can't unscramble the eggs.") But it does happen sometimes--Whole Foods/Wild Oats was a good example where, if I remember correctly, Whole Foods had to sell of some of the stores they purchased from Wild Oats years later after winning their merger case in district court but losing the appeal.
That is a good question. Anyone with knowledge on the topic care to pitch in and elaborate? It seems to me it is within the rights (and "obligation") of DOJ to appeal and pursue this further.
The burden to prove impact on competition is on the plaintiff. The article does not elaborate on the judge's argument about how they failed. I am curious about the other side's argument also.
Two statements to ponder:
>>"The bulk of the third-party competitor testimony proffered by the government was speculative, based on unproven assumptions, or unsupported -- or even contradicted -- by the government’s own evidence," Leon wrote.
>> "I couldn’t help but notice that the more and more questions were raised during trial about the reliability of Professor Shapiro’s theory and model, the more the government appeared to be minimizing the importance of his analysis," the judge wrote.
I can only infer from this the judge felt DOJ did not have a consistent and non-speculative case (see above). I am not sure what they can bring up during appeals as new evidence. They can appeal the speculation argumentation I guess.
In general, I am not sure what else one can bring to the table regarding mergers. Yes, whatever you bring to the table is going to be some form of speculation. That in itself should not be enough for dismissal, in my opinion of course. The law says differently (substantial). The defendant can always claim they are not going to raise prices. If 5 years from now, the consumer is <place word of choice here with negative connotation>, nobody is going to recall this merge as the root.
People just find it too hard to understand the impact of financial actions (one of the reasons you do not see SEC filing more often).
I am awaiting for the written ruling, but having checked previous cases, and inaction from DOJ, I don't expect much.
P.S. I am not sure this is really a vertical merger. It doesn't seem this clear cut to me. Thoughts on this?
I hope we see some lawsuits fighting this precedent all the way to the scotus. It’s that or an amendment, but who knows whether we’ll ever see that level of outrage.
