In a presentation at the
American Bar Association's Spring Meeting of the Antitrust Section, Steve Calkins, a Wayne State University Law School professor and former FTC general counsel under former Chairman Bob Pitofsky, launched into a look at what happened during the past year in the world of antitrust, especially in the world of merger enforcement. The Department of Justice didn't challenge any mergers, but the FTC was involved in several cases.
Continue reading below
"When the FTC goes to district court it tends to lose; when it stays home (and host an in-house administrative hearing) it tends to win," Calkins said. The agency's wins came from a post-consummation merger challenge of hospitals in Evanston, Ill., and an appellate affirmation of an administrative hearing in a post-consummation challenge involving Chicago Bridge and Iron. One win was a district court loss that the parties abandoned after an appellate argument, but before the appeals court ruled. The other two losses were the petroleum industry merger, Western Refining Inc. and Giant Industries Inc., and the natural foods grocery store merger between Whole Foods Market Inc. and Wild Oats Markets Inc.
Calkins used a power point about the following numbers, which he said could be a reason why the government lost its effort to stop the upscale grocery store deal. Perhaps, Calkins said, the judge wasn't keying on the really important issues -- at least, not on the things that the FTC believed were threats to competition.
166 -- times the judge cited the paid economist who testified for the parties, primarily about "critical loss analysis."
61 -- number of times the FTC's economist -- a University of Chicago Law School economist, a "superstar," according to Calkins -- was cited.
123 -- number of times the word "redacted" appears in the public version of the Whole Foods opinion from District court.
78 -- number of times judge cited by industry expert hired by parties to talk about the business. FTC did not cross examine or rebut this witness, who was apparently of great interest to the judge.
0 -- number of times the decision references Whole Foods CEO John Mackey's e-mails or other statements about his rationale for urging the board of directors to buy rival Wild Oats.
- Cecile Kohrs Lindell
