Too Hot to Handle: Internal Party Documents in Whole Foods and Other Modern Merger Challenges
The Antitrust Source
13 Pages Posted: 4 Dec 2008
Date Written: October 1, 2007
Documents are an essential part of any government merger investigation or trial. Indeed, the significance of documents in antitrust cases is underscored by the primacy that 4(c) documents are given by antitrust regulators during the initial Hart-Scott-Rodino waiting period and the substantial document requests accompanying a second request investigation. Some antitrust practitioners likely recall the days of searching through company warehouses to respond to a government subpoena or request for documents. Today, although the initial searches are more likely performed by information technology personnel, the volume of documentary material has expanded almost exponentially. The costs and burdens of analyzing these materials for both the merging parties and the government have always been substantial and only appear to be increasing, although some recent reforms have been beneficial. With all of the time and money expended on producing and reviewing documents, it only seems reasonable to wonder what exactly will be proved with all of this paper. Of course, the ultimate question is what the courts make of all this.
In the recent Whole Foods preliminary injunction hearing, documentary evidence played a particularly prominent role in the government's case. The FTC relied on a large number of documents, including several with colorful statements from Whole Foods' CEO John Mackey. The court nevertheless disregarded most of the FTC's documentary evidence without explanation, leaving practitioners to wonder what role, if any, documents can play in merger challenges.
Keywords: merger review, documentary evidence
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