A New DOJ Approach To Customer Testimony

Law360, New York (October 31, 2013, 5:45 PM EDT) -- The U.S. Department of Justice, Antitrust Division and the Federal Trade Commission historically have relied on customer testimony as a cornerstone piece of evidence — along with contemporaneous business documents and economic analysis — in lawsuits to block transactions they deem anti-competitive. This changed in 2004, when the DOJ lost its challenge of the merger between Oracle Corp. and PeopleSoft Inc., in large measure because the court rejected the DOJ’s customer testimony as unreliable.

This rejection of customer testimony was supposed to be favorable to defendants,...
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