'United States v. Bazaarvoice': A Cautionary Antitrust Tale for High-Tech Mergers

The recently concluded Department of Justice enforcement action against Bazaarvoice, Inc.'s 2012 acquisition of rival PowerReviews, Inc. is a reminder of important principles for antitrust enforcement in high-tech industries:

• First, the government scrutinizes transactions that do not have to be reported under the Hart-Scott-Rodino Act; the fact that a deal is not reportable is not a "free pass" under antitrust law;
• Second, internal company documents, particularly deal related documents, can have a huge impact on the outcome; care should be taken in preparing documents anytime a deal may raise antitrust issues;
• Third, while the fact that high-tech markets are dynamic is an important factor in an antitrust analysis, it is not an automatic winner; here, the DOJ and the Court rejected the arguments that innovation and new entry would constrain Bazaarvoice from exercising market power; and