Hot Documents, CEOs as Star Witnesses, and Litigating to Win: What the FTC and DOJ’s Reinvigorated Litigation Strategy Means for Merger Review

Amanda Reeves, Dec 12, 2012

The Federal Trade Commission and Department of Justice Antitrust Division are hot to trot about merger litigation these days-and with multiple major wins in recent years after a string of tough losses, their bullishness is not surprising. While many trial lawyers prefer to keep their trade secrets under wraps, both agencies are not only litigating more, but are also openly talking about their litigation strategies as well. To antitrust merger lawyers, the refrains in these public statements have become familiar: We will use your documents against you, we will use the merging parties as our star witnesses at trial, and we litigate to win. While no one can doubt that the agencies have always litigated only if they thought they could prevail, their recent successes in H&R Block, ProMedica/St. Luke’s, and other litigated cases demonstrate that the agencies have changed their litigation strategy. They are, in fact, litigating to win.

What does this revived and successful litigation focus mean, if anything, for the merger review process? When an agency issues a Second Request, it faces a simple set of choices: it can seek a remedy or it can close the investigation. If it decides a remedy is appropriate, it can sue or negotiate a consent. The fact that the agencies now think more about what evidence will (and won’t) work at trial has practical consequences for the type of advocacy that is likely to be most effective when the agencies make these decisions. After summarizing the recent evolution in the agencies’ trial strategies, I discuss some of those consequences here.

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