Foley & Lardner LLP partner Benjamin Dryden is quoted in the Law360 article, “What To Watch In Mass. Courts In The 2nd Half Of 2023,” offering his perspective on the U.S. Department of Justice’s (DOJ) lawsuit to block JetBlue’s acquisition of Spirit Airlines.
Dryden said that while the lawsuit signals an aggressive DOJ when it comes to challenging mergers, the case is “a real risk” for the government.
“To prevail, the DOJ will need to prove that the merger has the potential to lessen competition ‘substantially,'” Dryden said. “And even if the DOJ can carry its initial burden of proof, that does not necessarily end the case.”
Dryden noted JetBlue’s recent deal to give up slots at New York’s LaGuardia Airport currently owned by Spirit to Frontier Airlines, which shows the airline making good on part of its promise to divest Spirit’s holding in Boston and New York ahead of the merger.
“This shows that JetBlue plans to argue to the court that any competitive concerns will be cured before the merger closes — a strategy known as ‘litigating the fix,’ which merging parties have increasingly used with success in merger challenges,” Dryden explained.