AT&T/TW Decision Shows Importance of Evidence in Antitrust, Say Ex-FTC Commissioner, Aide

of economic analysis in antitrust law," Joshua Wright, executive director of the Global Antitrust Institute at George Mason University, and antitrust lawyer Jan Rybnicek, of Freshfields Bruckhaus, blogged Wednesday for the Federalist Society. That it was a vertical transaction and that DOJ was litigating without presumption of illegality of any merger that creates undue market concentration point to how powerful a tool that structural presumption is for government, they said. That presumption "may be doing real harm" if merger challenges go through even without evidence that the transaction is likely to hurt consumers, they said. The relatively little weight Leon gave DOJ documentary evidence shows that while ordinary course documents will still have a place in deal investigations, care needs to be put on relying on “ 'hot' documents" that conflict with testimonial evidence and economic analysis, wrote former FTC Commissioner Wright and his ex-aide.