No Longer Dazed and Gun Shy: The Bazaarvoice Decision
By MICHAEL COHEN & AMANDA FRETTO
Prior to 2011, the United States Department of Justice, Antitrust Division (“DOJ”) carried the characterization “dazed and gun shy” when it came to trying merger cases. The DOJ had not actively tried a merger case since its loss in Oracle in 2004. Oracle came to stand for the proposition that something was wrong with the way the DOJ was trying merger cases; the DOJ’s trial strategy was less than viable. Commentators, when discussing Oracle, have gone so far as to evoke an image of the judge as coroner presenting the cause of death for the DOJ’s case. As a result, the DOJ was forced to take a hard look at how it tried merger cases.