[from]

The FTC's incredibly low win rate in federal court should be a source of agency-wide embarrassment. The only place they reliably win is their kangaroo "administrative courts" in which they act as the judge, jury and executioner but those are probably on their way out. But it doesn't even matter anyways because the new strategy is going to be outsourcing enforcement to Europe.

[HWR_14]

I would expect the FTC to have a low win rate. Let's leave aside how atrophied enforcement of antitrust has been over the last 40 years, and the subsequent implications for case law, regulations and human skill of litigators.

This is a 75 billion dollar event between two giant companies. They can pay for legal advice. That legal advice is well incentivized to predict how the case will go, and signed off on it. I assume MS has to pay a hefty fee if the acquisition is blocked for antitrust reasons, in addition to the time and embarrassment for all involved.

Therefore, the only cases the FTC should expect to see are ones where highly paid lawyers said "we will probably win this case". They might be wrong (and the FTC does seem unable to stop too many cases), but no matter how tough the enforcement gets, I would expect the FTC to usually lose at trial. The standards will just be applied pre-merger announcement (or probably pre-offer).

It might be an exciting couple of years when the FTC regrows its backbone and the lawyers assessing mergers have not caught up yet.

[Accujack]

The FTC is still spooling anti trust enforcement back up from a nonexistent state. A lot of the rules governing mergers and acquisitions haven't been enforced since the 1980s due to regulatory capture.

Read up on developments in anti-trust in the last couple of years here:

https://www.thebignewsletter.com/

[anyoneamous]

Is the low win rate a surprise though? As a foreign observer, the US justice system seems to largely be based on who can spend the most - so large company > government > small company > citizen is pretty much the assumed outcome. I have a vague sense the order also wraps around (individual > large company) because of cases like the McDonald's boiling coffee, but in those cases headlines and bad PR are just acting as a proxy for money.

[notquitehuman]

Can you share a link to that strategy memo?