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Matthew Adler, Thomas Dillickrath, Mar 13, 2014
Spring is the air, and this can mean only one glorious thing: the start of baseball season is near. Baseball should have a slightly different feel in 2014. We should expect fewer chest-bumping, dirt-kicking, irate managers storming out of dugouts to chastise umpires for perceived blown calls. Why? Instant replay. In 2014, Major League Baseball will implement the expanded use of instant replay. Managers can now calmly request that umpires take a second look at available evidence to avoid a blown call. Although a game may take a little longer, all parties involved (except maybe the losing team’s fans) can take comfort in the outcome because theoretically all available evidence was used. Unfortunately, in the recent case of United States v. Bazaarvoice, the merged parties lack the ability to call for a review of all the available evidence, and instead will have to deal with a narrowly circumscribed view of the evidence that may have resulted in what is colloquially termed in baseball parlance a “blown call.”
In Bazaarvoice, the Department of Justice successfully challenged the consummated merger of Bazaarvoice and PowerReviews. U.S. antitrust authorities have, in recent years, shown a keen interest in challenging consummated mergers. Consummated merger cases pose a unique set of challenges for both antitrust authorities and the courts. Of course, it is technically feasible-and even at times necessary-to disintegrate merging parties in extreme cases, but such instances should be rare. Courts and regulators should exercise extreme caution to avoid results that ultimately are antithetical to the primary purposes of the antitrust law-protecting competition and consumers.
Like many commentators, we believe that the decision in Bazaarvoice was wrong. In our view, the court was overly dismissive of post-merger evidence, effectively creating a new evidentiary rule insensitive to context and reflective of an older, classical jurisprudence ill-suited to the complexities of modern antitrust jurisprudence and, specifically, this case.