Learn about recent staffing changes at the antitrust agencies in this story's online exclusive.
Much has been made in the press of an aggressive antitrust crackdown by the Obama administration on mergers and acquisitions.
The DOJ and FTC’s focus on litigation staffing also bolsters the government’s comfort with bringing merger challenges. Varney says that the DOJ “has sharpened its litigation tools” and upped its litigation staffing.
Robby Robertson, former chief trial counsel for the FTC’s Bureau of Competition, says the FTC also has staffed up in the litigation area. “They still need more litigators, but they’re trying to keep people well-trained in that area, and they have some very sharp young people who work their tails off,” says Robertson, now a partner at Hogan Lovells. “It’s a very vibrant agency and something to be reckoned with, frankly.”
Telling the Story
Keeley says usually post-closing challenges come a year or two later, after the buyer raises prices or the government can show some other actual anti-competitive effects of the merger. The government puts substantial weight on such evidence. In a March 2012 speech, then-FTC Commissioner Tom Rosch said focusing on actual aftereffects “is an easier story for a court to understand.” In an earlier speech, he similarly underlined the importance in merger challenges of creating a succinct “story line” rather than relying on “esoteric, econometric formulae that lay judges and juries (including me) are not likely to comprehend.” Doing so also allows the antitrust agencies to “more flexibly consider a broad range of effects to be anti-competitive effects,” Rosch said.
Both agencies have gotten better at telling the story of the allegations underlying their challenges without relying too much on complicated theories, Keeley says.