National Law Journal: The FTC challenged this proposed acquisition on the basis that it would hurt competition in the market for office supply sales to large corporate customers. Going into the review, did the FTC have an early sense that the deal would raise concerns for the business-to-business market rather than the retail market?
Feinstein: I really can’t go into specifics. I will tell you that, in the earlier review of the Office Depot-OfficeMax merger (in 2013), we looked at both retail and contract. We made public in our statement that we looked at both retail and contract. That’s all I’ll say. I can’t talk about the internal review we did.
Judge Sullivan appeared to criticize the FTC at a couple points in this case, first over an Amazon executive’s testimony and later about the market analysis by your expert. How did you react to that feedback? Did it make you uneasy at all?
I think judges ask questions during trials all the time. If anything, what happened in that trial should be a lesson to the press not to read too much into any given question at any given time. We always were just going to put forth our case on the facts and the law, and we did so.
And that’s what resonated with the judge. That’s normal in a trial, that a judge raises questions including hard questions, including devil’s advocate questions. And so that’s quite typical to happen in a trial. And I think that’s what happened. I think the judge made clear that, while he raised questions about the declaration process, he had no concerns that the FTC did anything wrong. He made that very clear in his opinion. He also made clear at the closing that he understood the process by which the FTC and the economist work together to define the relevant market. That issue wasn’t an issue, either.
