WASHINGTON — The US lawsuit to block Staples Inc. from buying Office Depot Inc. now rests with a judge who has undercut the government’s case throughout the trial.
During final arguments Tuesday by the companies and the Federal Trade Commission, District Judge Emmet Sullivan needled the government about why its economic expert completed his analysis about the scope of the market only after the agency filed its complaint. It would have been more logical if the expert had come to his conclusions earlier, the judge said.
“I’m still kind of troubled by that,” he said.
Sullivan’s query was the latest in a string of pointed questions for the FTC during the nearly three-week trial. He challenged how the agency prepared a witness statement, whether it shared certain information with the companies, and why it didn’t allege harm to consumers who buy pens and Post-its. In fact, the FTC said the merger would harm competition in sales to corporate customers — not retail consumers — in its suit to block the $6.3 billion proposed merger.
FTC lawyer Tara Reinhart pointed to bidding data that shows Staples and Office Depot are the only two companies winning business from large companies.
“Customers tangibly benefit from the head-to-head competition,” she said.
Sullivan, a long-serving judge who has been a vocal critic of government lawyers, has repeatedly pressed the two sides to reach their own settlement after the suit was filed in December. The FTC told him the remedies proposed by the companies weren’t enough. In response, the judge suggested an unorthodox resolution: Why not give the merger a trial run to see whether the government’s warnings about higher prices would happen? That would make it all the more difficult to unwind the merger, the FTC said.
Still, the judge could block the tie-up, and he warned Tuesday that neither side should “read too much” into his questions.
“Sullivan’s direct questioning of witnesses and criticism of the FTC during the hearing gave investors the impression that the FTC’s case was being undermined,” said Ira Gorsky, an analyst at Elevation LLC who has been following the trial. “That made them put higher odds on Staples prevailing in court.”
Sullivan has been hard on the government since the start of the proceeding, which gives both sides the opportunity to present evidence on the tie-up so that the judge can decide whether to allow the companies to merge or issue an order to halt the deal pending an FTC administrative trial.
“The antitrust laws shouldn’t be enforced like this where you sue to block a merger that’s squarely in the public interest” because the companies will be more efficient and pass savings on to consumers, said Diane Sullivan, a lawyer for Staples who isn’t related to the judge.
Three days into the hearing last month, the judge accused the FTC of trying to elicit false information from an executive of Amazon.com Inc. about the retailer’s ability to compete against Staples and Office Depot.
Sullivan dealt another blow to the FTC when he said a government expert couldn’t testify about his projections of future competition from Amazon because the agency didn’t share the expert’s analysis with Staples and Office Depot ahead of time.