Saturday, July 29, 2006
Judges and Consent Decrees
I would add that judicial deference to DOJ in reviewing consent decrees is warranted. Justice does an incredibly thorough, months-long review - the companies involved must turn over thousands of documents, answer pointed interrogatories and generally let DOJ and its investigators and economists dig deep into their businesses. The fact that the remedies in consent decrees sometimes seem mild says less about DOJ's focus on enhancing competition than it does about its assessment of the chances of prevailing in a lawsuit to block the merger. Most mergers - even consolidating ones - are unappealing to a few parties but unlikely to be shot down under current antitrust laws. So, like any litigators seeking to salvage something from a bad case, DOJ will try to get some kind of concession from the merger participants.