William Baer
The Senate confirmed William Baer of Arnold & Porter as the new chief of the Antitrust Division of the U.S. Department of Justice on Sunday, to the delight of many in the antitrust bar who have widely lauded his qualifications for the job.
Baer is considered likely to continue the recent push on merger challenges and cartel enforcement actions seen in the last year and be "an aggressive but wise enforcer," said Allan Van Fleet, a partner in the Houston office of McDermott Will & Emery.
"I think the message to antitrust practitioners and companies wondering what this means to compliance: I don't see any letting up off the pedal by the administration," said Van Fleet, a former chair of the American Bar Association's antitrust law section. "I see aggressive enforcement action continuing."
The 64-26 vote only took a few minutes, with no debate or statements on the Senate floor. All votes against him were from Republicans, who nevertheless gave Baer a warm welcome at a Judiciary Committee hearing in July. They later would say they did not like something discovered in Baer's background check.
It is harder to find a vote against Baer among top antitrust attorneys.
He has a wide range of experience in both private practice and government enforcement, including four years as director of the Federal Trade Commission's Bureau of Competition during the 1990s. His longevity is illustrated in a confirmation packet that included 1,450 pages of news articles in which he was quoted from as far back as 1991, as well as 775 pages of remarks he has given to the FTC and other agencies, and 557 pages of testimony and other statements.
Baer is known for being a straight shooter, who is smart and understands enforcement, said Deborah Garza, co-chair of Covington and Burling’s antitrust and consumer law practice group.
"He's not going to be going out to make a mark," said Garza, a former acting assistant attorney general in charge of the Antitrust Division. "I don’t think he's going to be looking for, 'What's my big case, what am I going to make my name on.'"
Baer will be facing some challenges. Budget constraints will mean marshaling the division's resources to go after cartels and mergers that really matter to the economy, Van Fleet said. The DOJ might also look hard at competition issues in the health care industry as the Affordable Care Act is implemented.
Garza said that there will be interest in how Baer interprets a few of the most pressing issues, such as most favored nations clauses and the role of the U.S. Court of International Trade in enforcing standard essential patents.
