THE UNITED STATES V. BAZAARVOICE MERGER TRIAL: A PANEL DISCUSSION INCLUDING INSIGHTS FROM TRIAL COUNSEL
Moderated by Karen Silverman1
In the summer of 2012 Bazaarvoice, the leading provider of product ratings and review software and services, finalized the acquisition of its primary rival, PowerReviews. Two days later, the United States opened an investigation that led to a lawsuit in the Northern District of California to unwind the deal. In the fall of 2013, the parties squared off in court for a three week trial before Judge William H. Orrick, III. In January of 2014, Judge Orrick handed a victory to the government, issuing a 141 page opinion finding that the acquisition violated Section 7 of the Clayton Act.2
The case was watched by the antitrust bar and others for several reasons. First, merger challenges are only rarely litigated all the way through a trial on the merits. Also, the case marked the first time the Antitrust Division had returned to the Northern District for a merger matter since its ill-fated challenge to Oracle’s acquisition of PeopleSoft in 2004 in front of Judge Vaughn Walker.3 The somewhat unique posture of the case also generated interest. Because a Hart-Scott-Rodino filing was not required, the government was seeking to unravel an already consummated transaction, rather than trying to enjoin a merger from happening in the first place. And the case was of interest because it involved two relatively small technology companies, raising issues of the correct standard for judging a merger in a dynamic part of the economy.