In this issue:
The recent DOJ court victory throwing out the 2012 merger of Bazaarvoice and PowerReviews involved several meaty antitrust questions: unwinding a consummated merger (here, one that was exempt from HSR reporting) and related remedies; the presence of “hot” documents and intent as a dispositive factor; the value of customer testimony; post-acquisition, “arguably manipulable” evidence; the suitability of traditional merger analysis for high-tech mergers; DOJ’s inclinations to go to trial. Our authors, invited by Danny Sokol, evaluate these questions and bring a variety of opinions to the table. Pull up a seat and dive in.
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The Bazaarvoice Case
Some Lessons from Bazaarvoice
Bazaarvoice was a big victory for the Antitrust Division, and it offers important guidance on a number of substantive antitrust issues. Peter J. Levitas (Arnold & Porter)
Bazaarvoice: Protecting Consumers by Silencing the Customer?
Bazaarvoice is remarkable more for its reasoning rather than its result. Tim Muris & Christine Wilson (Kirkland & Ellis)
Blind Umps & Blown Calls: The Troubling Decision to Ignore “Arguably Manipulable” Evidence in United States v. Bazaarvoice
Indeed, the case suggests that parties can take no comfort in real-world post-merger experiences. Thomas Dillickrath & Matthew B. Adler (Baker Botts)
Reflections on Bazaarvoice
Bazaarvoice illustrates the problems with making market definition a requirement. Gregory K. Leonard & Parker Normann (Edgeworth Economics)
Lessons From United States v. Bazaarvoice
Courts are most comfortable relying on hard facts, and hard facts are typically reflected in business documents and historic market metrics. Bernard A. Nigro, Jr. & Matthew Joseph (Fried Frank LLP)
Key Lessons from the Recent Bazaarvoice Decision
Bazaarvoice will likely add fuel to the debate over the proper role of antitrust enforcement in rapidly evolving high-technology markets. Franco Castelli (Wachtell, Lipton, Rosen & Katz)
Bazaarvoice: Applying Traditional Merger Analysis to a Dynamic High-Tech Market
No one should be surprised that the government will investigate mergers involving products in a high-tech industry utilizing the same Horizontal Merger Guidelines that apply to all merger investigations—regardless of the industry. James A. Fishkin (Dechert LLP)
No Longer Dazed and Gun Shy: The Bazaarvoice Decision
Bazaarvoice presents a strong word of caution: it may signal that the antitrust agencies will now bring a case anytime evidence can support a mere complaint. Michael Cohen & Amanda Fretto (Paul Hastings LLP)
