That is a good question. Anyone with knowledge on the topic care to pitch in and elaborate? It seems to me it is within the rights (and "obligation") of DOJ to appeal and pursue this further.
The burden to prove impact on competition is on the plaintiff. The article does not elaborate on the judge's argument about how they failed. I am curious about the other side's argument also.
Two statements to ponder:
>>"The bulk of the third-party competitor testimony proffered by the government was speculative, based on unproven assumptions, or unsupported -- or even contradicted -- by the government’s own evidence," Leon wrote.
>> "I couldn’t help but notice that the more and more questions were raised during trial about the reliability of Professor Shapiro’s theory and model, the more the government appeared to be minimizing the importance of his analysis," the judge wrote.
I can only infer from this the judge felt DOJ did not have a consistent and non-speculative case (see above). I am not sure what they can bring up during appeals as new evidence. They can appeal the speculation argumentation I guess.
In general, I am not sure what else one can bring to the table regarding mergers. Yes, whatever you bring to the table is going to be some form of speculation. That in itself should not be enough for dismissal, in my opinion of course. The law says differently (substantial). The defendant can always claim they are not going to raise prices. If 5 years from now, the consumer is , nobody is going to recall this merge as the root.
People just find it too hard to understand the impact of financial actions (one of the reasons you do not see SEC filing more often).
I am awaiting for the written ruling, but having checked previous cases, and inaction from DOJ, I don't expect much.
P.S. I am not sure this is really a vertical merger. It doesn't seem this clear cut to me. Thoughts on this?