On May 26, our Featured Expert Contributor on the Justice Department’s antitrust activity, Anthony W. Swisher and his Baker Botts L.L.P. colleague Jody Boudreault discussed the District of Delaware’s U.S. v. Sabre Corp. opinion and DOJ’s motion asking the Third Circuit to vacate that ruling as moot. After competition authorities in the United Kingdom challenged Sabre’s merger with Farelogix, Sabre terminated the acquisition.

In its motion to the Third Circuit, DOJ explained that the district court decision “if not vacated—could have an outsized effect on cases involving competition in the digital economy, where it is not uncommon for multi-sided platforms to face competition from one-sided rivals.”

On July 20, a three-judge panel of the Third Circuit granted DOJ’s motion to vacate, citing Sabre’s decision to forego the merger. Notably, the order included the following language:

“We also express no opinion on the merits of the parties’ dispute before the District Court. … As such, this Order should not be construed as detracting from the persuasive force of the District Court’s decision, should courts and litigants find its reasoning persuasive.”

Swisher and Boudreault, anticipating the Third Circuit’s decision, concluded their post with a similar point: “Even if they are successful, however, the decision provides a roadmap of arguments available to future litigants.”