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The FTC and DOJ were both getting briefings not only from both companies' lawyers, but also from rival bidder NetApp Inc. (NASDAQ:NTAP), who is also hoping to take home Data Domain, for the same $30 per share bid, though its was a mix of stock and cash. To make matters even more interesting, NetApp started a blog, urging customers to weigh in with antitrust regulators with concerns about the EMC deal, which rival NetApp believes will create a roadblock for competition in the data deduplication business. NetApp struck an initial merger agreement with Data Domain May 21, and EMC countered with a $30 per share hostile cash tender bid on June 2, filing its required premerger paperwork with both agencies. NetApp came back with a bid for $30 in cash and stock. Its merger application was filed with regulators June 3. Without a clear determination from the two agencies fighting for control of the matter, the companies briefed lawyers at both. In this case, lawyers in the Network and Technology section at the DOJ and their counterparts in Mergers 2, the shop at the FTC that has jurisdiction over computer mergers, will simultaneously listen to lawyers for the prospective buyers. Traditionally, the FTC has reviewed slightly more mergers in the hardware industry, while the DOJ's lawyers have generally been responsible for more software deals. But in recent years, antitrust lawyers have had more difficulty advising clients as to which agency is likely to review a computer industry deal because of the increasing convergence between hardware and software, which is part of the issue in the fight for Data Domain. Data Domain is a plum takeover target because its products allow customers to eliminate duplicative information and reduce the amount of storage space necessary for companies to back up critical data. According to Jay Kidd, NetApp's chief marketing officer, his company's bid for Data Domain is a better offer for shareholders because it has a higher chance of regulatory approval, as EMC and the target are rivals in several areas. EMC and Data Domain both have patents for deduplicating data that could prevent rivals from expanding the market, and the two are major competitors for software that eliminates redundant data. "We believe EMC has taken this move to reduce competition in the market," Kidd said. NetApp, on the other hand, could expand its product market if it can acquire Data Domain, and offer an enhanced service to its enterprise storage system clients. Its officials say the deal is certain to get antitrust approval. ThinkEquity LLC analyst Rajesh Ghai said he doesn't expect the Federal Trade Commission's antitrust review to hamper the deal, regardless of who ends up the winning bidder, but it could delay matters. - Cecile Kohrs Lindell in Washington See NetApp's blog about the competition issues
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Nearing the end of the 15-day period the law grants federal antitrust enforcers to investigate whether a cash tender offer could hurt consumers, the Federal Trade Commission won a wrestling match with the Justice Department to rule on EMC Corp.'s (NYSE:EMC) $1.8 billion takeover bid for Data Domain Inc. (NASDAQ:DDUP). 
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