DOJ Gives SUN The GO

If you thought the sale saga of Sun Microsystems ended in April, Thursday's news from Washington may have come as a surprise. Months after the ink dried on the deal between Sun and database heavyweight Oracle, the U.S. Department of Justice has finally gotten around to giving its blessing.

The process of selling off Sun, for those who may have forgotten, was a lengthy and very rocky undertaking. Sun's first suitor, IBM, played fast and loose with its hand, assuming Sun had no cards to hold and nobody to back its bets. The two companies initially entered into a contract directing that neither would pursue any other deal while talks between the two were underway. IBM killed that contract in early April by pulling the $7 billion offer then on the table, complaining, among other things, about "change of control" contracts which would require them to compensate senior executives that are commonly eliminated in such acquisitions. Sun, for its part, raised concerns about IBM's ability to bail on the deal, as well as the fact that it dropped it's offer to $9.40 per share from the previous $9.55.

As big companies who believe they have the upper hand often do, IBM stormed off in a huff, expecting Sun to come running after it begging for another chance on whatever terms IBM elected to offer. Instead, Sun's Board of Directors taught IBM a multi-billion-dollar lesson by agreeing to sell to Oracle instead. Sun even managed to bring the sale price in at $9.50, a 10¢ premium over IBM's lowered offer, a detail that certainly must have stung whomever suggested the initial drop. IBM was reportedly flabbergasted, not to mention completely ambushed, by the deal — it was, as most observers had already opined, pitching a fit to get its way, and very much wanted its deal to go through. Both Sun and Oracle, for their part, were popping champagne corks and issuing press releases, one of which quoted Oracle's president as saying Sun was expected to contribute a $1.5 billion profit its first year, and more than $2 billion in the next.

There is a massive speed bump on the acquisition expressway, however, in the form of government regulation. The Feds, being charged with watching out for the public good and preventing the rise of a modern-day Standard Oil — though the question of their effectiveness in that regard has been raised quite often in recent years — generally have a thing or two to say about big business buyouts, and the Sun/Oracle deal was no exception. Indeed, the Justice Department's regulators apparently gave the matter an extra-thorough going over, as it announced two months in that it would need a bit more time to poke around. The poking is apparently finished, however, as the DOJ announced yesterday that it had signed off on the plan.

The one final obstacle for the deal, and perhaps the most difficult of all, is the European Commission. Though both Sun and Oracle are U.S.-based companies, and therefore squarely within the jurisdiction of the United States government, a significant wrinkle in European law catapults the EC to a regulatory high point. According to European antitrust law, any merger or acquisition between companies that do business in the European Union must be scrutinized and approved by EU regulators. European antitrust law, and particularly its application by EU regulators, is known for being somewhat more strict than that of U.S. officials.

While European officials lack the authority to prevent the merger outright — that being the sovereign province of the United States — they can prevent the resulting firm from doing business within the European Union. The results of such a prohibition on a major corporate force would of course be somewhat unpredictable. Obviously, being prevented from undertaking business in such a large market would prove a significant financial hit for the company in question. In the case of a major provider, however, barring their products from the entirety of the EU could prove a significant hit for European businesses, and just as is the case in the US, when businesses are unhappy, politicians are unhappy, and unhappy politicians have a tendency to put heads on the block. (Imagine, for example, if a company with a 93% market share in desktop operating systems were to suddenly be barred from doing business in the EU — certain groups who shall remain nameless would likely rejoice, but the vast majority of European businesspeople would not.)

With all but this last hurdle jumped — Sun's shareholders having approved the deal last month — all that remains to do is wait for the EU. Perhaps the parties will be calling on insiders for tips — Sun, after all, purchased MySQL, originally a Swedish firm.

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Justin Ryan is a Contributing Editor for Linux Journal.

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