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EC Digs Deeper into Oracle-PeopleSoft Fight

After a month-long inquiry, the European Commission (EC) Monday said it has ruled in favor of moving to a second phase analysis of Oracle's hostile $7.5 billion takeover attempt of rival PeopleSoft, which could take as much as four months to complete.

The decision comes on the heels of statements made by Oracle's Executive Vice President Chuck Phillips, who last week said that the U.S. Department of Justice (DOJ) had told his Redwood Shores, Calif.-based company that it would take at least until January to conclude its inquiry into the matter.

"During the investigation, the Commission will... investigate the impact of the transaction on the markets for business applications software used by large multinational companies to co-ordinate and plan their financial and human resources and their relationship with customers, among other things," the commission said in a press statement.

The EC said that its initial one-month investigation has shown that the combination of two of the largest competitors in the market merits further analysis because the number of key players would be reduced from three to Oracle and SAP in the applications software markets. The Commission also said it may investigate any potential effects in the relational database market, where Oracle is strongest.

PeopleSoft spun the decision as a validation that the regulatory bodies are concerned about what could be possible anti-competitive actions by Oracle.

"The European Commission's decision reflects what we believe is the Commission's concern about the anticompetitive impact of Oracle's unsolicited tender offer on the industry," PeopleSoft said in a statement. "In addition to the European Commission's review, Oracle's unsolicited tender offer continues to be the subject of ongoing reviews by the U.S. Department of Justice and a task force of state attorneys general."

Oracle, too, applauded the EC's decision.

"We have said before that we felt a phase two review would be initiated, so we are not surprised by the European Commission's decision," said Oracle spokesperson Jim Finn. "We continue to work closely with the EC throughout this process."

While the EC's position on the matter is clear, it doesn't shed any light onto what the DOJ is doing with its investigation.

A spokeswoman in the DOJ's antitrust division refused comment because it is not the agency's policy to comment on the status of any official investigations. The DOJ will not offer so much as a timeline for its investigation, the spokesperson told internetnews.com.

But some Oracle executives claim to have an inside track on the DOJ's clandestine timetable. Oracle's Phillips told the public last week that the DOJ's inquiry could very well extend into the new year despite earlier statements from Oracle that the investigation would be finished this month or the next.

But those who follow hostile mergers and acquisitions and legal experts aren't surprised the scrutiny is taking longer than expected because so much is at stake in the business applications software market, which is valued in the multi-billion-dollar range.

According to Phillips, the DOJ is said to be taking sworn statements from players in the applications space. Legal experts say the process boils down to figuring out exactly how each company is positioned in the applications market and how a merger of that magnitude would affect the thousands of customers PeopleSoft has groomed over the years.

While Oracle is claiming they have been apprised of a January timetable for a DOJ decision, PeopleSoft spokesman Steve Swasey said his company hasn't heard anything of the sort.

"We don't know," Swasey told internetnews.com. "There is no schedule or timetable for this."

Swasey said PeopleSoft is not surprised or dismayed about how long the investigation is taking place, noting that it is to be assumed that a regulatory body would take as much time as it needs in scrutinizing a hostile takeover attempt that could seriously disrupt the market and limit customer choice.

Pleasanton, Calif.'s PeopleSoft, which acquired Denver's J.D. Edwards some months ago to bolster its position in the mid-market, has fought wildly to stay Oracle's menacing overtures with a series of legal filings and some poison pill effects, but Oracle has pressed on, largely undeterred.

Since Oracle moved to purchase PeopleSoft in June, Ken Marlin, managing partner of New York-based Marlin & Associates, a mergers and acquisitions investment bank focused on media and technology, has been extremely confident that Oracle would succeed in its move to snatch PeopleSoft from its hearty position in the lucrative market. But now he thinks Oracle should back off a little given the confluence of actions that have come to the fore of late.

"I think that Oracle would be smart to back away gracefully -- for now," Marlin said. "It looks as if they may be doing so..."

Marlin said several events have conspired to make the PeopleSoft purchase too difficult and expensive to be a real possibility. There is the official "poison pill" to consider, which consists of additional shares issued to all shareholders other than Oracle if Oracle's holdings exceed a certain threshold; the "unofficial poison pill," which consists of generous rebates to customers in the event there is a change in control of the company; and, of course, the DOJ and EC scrutiny.

But the biggest hitch, Marlin said, is PeopleSoft's stock price, which he said it too high right now at $20.62 as of this writing.

"Oracle would now be better served to back off a bit and watch PeopleSoft's stock price fall," Marlin said. "When that happens -- and I predict that it will -- there will be more pressure on PSFT mgt/board to eliminate both forms of poison pill... that will leave Oracle with just DOJ/EC - and then they can 'negotiate.'"

Marlin expects PeopleSoft's stock price will drop because he doesn't believe the company will make good on its promise to grow 30 percent per year. That will drive down shareholder confidence.

"When Oracle backs away PeopleSoft's shares will come down a little bit," Marlin predicted. "It may take six months, but Oracle cannot completely back away and they have to go through this process with the EC and DOJ anyway."

Ironically, Robert Christopher, an attorney with Coudert Bros. in Palo Alto, Calif., changed his tune from a few months ago, when he was confident PeopleSoft would emerge victorious.

Now he isn't so sure.

"I think it's surprising if the EC would want to to jump out ahead of the DOJ to review something as complex as this involving two American companies," Christopher told internetnews.com. "That would put them on a similar timeline. Now they can wait and see what the DOJ does."

"Secondly, I'm concerned that this bodes ill for PeopleSoft because I can't help but believe that despite their sterling performance the last couple of quarters that there will be a significant slowdown in sales and net revenues as confidence in the company drops because of the cloud hanging over its head. It's like I said before, business hate uncertainty and business customers will think twice. As downward pressure is put on PeopleSoft's financial performance it can drive the stock price down and it might well make the Oracle offer sweeten a bit. I don't like to see it drag out as long as it's dragging out.. I would have said something very different a few months ago but it's of some concern to me."