At any point during your investigation, did Oracle discuss divesting part of its business to make the merger more acceptable?
That's not a discussion we had at any point in the review. When we're investigating a merger, parties are well aware that if they have some change to the transaction that they would like to propose, and they think it would address competitive concerns, we're more than happy to listen to that and discuss it. But that is something that didn't happen here.
Is that option still open?
It has always been our policy to listen to anything a party has to say about a transaction they are intending to undertake. We have a free-market system in the United States, in which people are entitled to make independent choices with the enterprises they own and operate. We try to be respectful of that. As a procedural point, it's always the case that having that sort of discussion is better done during an investigation -- rather than when a case is headed to court.
Some attorneys specialising in antitrust cases have characterised US District Court Judge for Northern California Judge Vaughn Walker as someone familiar with technology but laissez-faire in his approach to the industry. Will this make your job more difficult?
I never had a case in front of Judge Walker. But my reaction is that almost any good antitrust lawyer would be happy, if they learned that a judge with antitrust experience is going to be the judge assigned to their case. The folks here at the division, whom I talked to, are very pleased with the assignment to the case.
Did Larry Ellison do himself a disservice in the beginning by brashly saying Oracle would shut down PeopleSoft, fire its employees and discontinue marketing its products?
I don't look at it in terms of whether he did himself a disservice. He made some statements about what, as I understand it, Oracle's view of the consequences of the merger would be. And I think that those facts have been -- and will be -- taken into account. But again, it's not a question of advocacy or emotion to us but rather a question of looking at the facts that surround the merger.
Charles Phillips' quote in your suit ("The market is down to three viable suppliers who will help reautomate the back office business processes for global enterprises for years to come." -- Charles Phillips, current co-president of Oracle, made this assessment of the market when he was an analyst in 2002) was sort of ironic. Were you trying to rub Oracle's nose in all of this with that?
No. I don't think there is anything about what we do that revolves around emotion or nose rubbing or anything like that. What I think that quote reflects -- and it's by no means the only one like that out there in the public record -- is the general commonsense understanding of participants in this market. Oracle, SAP and PeopleSoft are the competitors the customers rely on to get the benefits of competition.
In looking at the number of Hart-Scott-Rodino merger cases filed from 1998 to 2002 and comparing those to the number of cases investigated, it seems that the percentage investigated went up, yet the number challenged are staying about the same. Why is that?
It could be a case where you have a severe drop in filings, in which you go from a high point of 4,900 filings assigned to the Justice Department in fiscal 2000 to just more than 1,000 last year. It's not surprising that with that sort of change, you'll have a lower staff workload and, perhaps, more opportunity to look at a few more cases as a percentage on the margin when they come in.
That doesn't reflect any sort of decision to take a harder look at transactions. It may also be the case that if we continue to see the number of merger filings pickup this year, as we certainly have so far, that figure may go down as a result of the workload. But my major point is that I don't think you should look at the workload statistics and conclude there has been a policy decision to take a different substantive approach to mergers because that would not be accurate.
Any sense of how the European Commission is leaning with its antitrust investigation and its deadline of 11 May?
Just as we are concerned with American customers, they are concerned with the European market. And as in any merger case, we try to cooperate in making one another aware of our time frames, and to some extent -- consistent with our confidentiality obligations -- share the benefit of the work of our staffs on those cases. We do cooperate in that way. But in terms of where the Commission's investigation will lead to, I don't know.
Did your lawsuit percolate up from the states and their concerns?
I like to be a good colleague and work with our state counterparts. But it would be completely wrong for me to say that the lawsuit percolated up or that we were really relying on them to reach the decision we reached here. We're pleased that some of the states decided to join our lawsuit and look forward to working with them.
Were you expecting more states to join your suit than the seven that did?
There were roughly 38 states looking into this merger, originally. I don't deal with each and every one of the state folks day to day on this. I don't recall there being any sense of surprise from our staff here on the number of states that joined in the complaint.
What role does technology play in your life?
I use a PC at work, and I carry around a mobile phone with a Web browser on it. But I don't think I'm much different than the other folks who hold jobs like the type of job I hold. I am certainly familiar with technology -- and use it -- but I certainly won't say I'm a high-end, cutting-edge user, either.
Years from now, how would you like your role as head of the antitrust division to be defined?
I would like to think that I'm doing a good job of traditional antitrust enforcement. That means, on the criminal side, being very aggressive in trying to fight price fixing and cartels. And on the merger side, that means trying our best with legal ways, as opposed to public relations or partisan ways, to make the best calls we can. On monopolisation and unilateral conduct, I would like to be thought of as someone who has a great degree of faith in the market and a lot of scepticism over the ability of antitrust agencies and plaintiffs to engineer competitive outcomes in the market. And I would like to be thought of as someone who has helped push our administration of that part of American antitrust law toward what I describe as a very traditional view.
