Tuesday, June 17, 2008
Posted by D. Daniel Sokol
ABSTRACT: The decisions in Arch Coal and Oracle in 2004, and Whole Foods and Foster this past year, has led to some sober reflection both inside and outside of the agencies. Indeed, the Federal Trade Commission held a one day workshop on merger litigation and unilateral effects theories this past February. The day was spent reflecting on the agencies’ recent merger litigation experiences and debating whether the agencies should consider changes to its approach – specifically its approach to unilateral effects cases like Oracle and Whole Foods. I thought I would share some of my thoughts on the issue in light of both my experience as a member of the Commission and my experience as a member of Oracle’s litigation team that prevailed against the Department of Justice in 2004. I believe that there are lessons to be learned from these experiences – both from the cases we lost but also from the cases we won.