Antitrust Lawyers Predict New DOJ Division Chief to Continue 'Aggressive Enforcement'

Todd Ruger

Legal Times

01-03-2013

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.

Baer did not immediately return a call for comment Wednesday. He told Senators during his hearing in July that he had no pre-set agenda for the division, and added that his leadership would mean that not much would change. He told the Judiciary Committee, in questions from Senator Mike Lee (R-Utah), that he would focus on consumers.

"I would take this job, if confirmed, with a little bit of humility about what might need to be changed. I think the Antitrust Division has been well run in recent years," Baer testified. He said former assistant attorney general Christine Varney, and two acting assistant attorney generals, Sharis Pozen and Joseph Wayland, "are people I admire and respect and who I think have done a very good job."

Baer will join DOJ on the heels of the antitrust division's successful effort to stop the $39 billion merger between AT&T Inc. and T-Mobile USA. A team from Arnold & Porter, including Richard Rosen and Donna Patterson, defended AT&T in the litigation in U.S. District Court for the District of Columbia.

"Bill is a highly-skilled and well-respected antitrust lawyer who understands the importance of promoting competition in order for consumers to reap the benefits of lower prices and better quality products and services," Attorney General Eric Holder Jr. said in a written statement. "I have no doubt that he will lead the Antitrust Division effectively in its vigorous enforcement of the antitrust laws."

Baer, nominated in February, had awaited final Senate approval since the Judiciary Committee approved him in September. He finally got a vote Sunday during an extra weekend session, when legislators were focused on negotiations about tax and spending cuts to resolve the fiscal cliff. Had the Senate not voted, the White House would have had to re-nominate him next year.

Baer is one of the most respected attorneys in the field, said Richard Parker, chair of the antitrust and competition practice at O’Melveny & Myers and a friend of Baer. "This is really good for antitrust, and really good for the United States," Parker said. "Bill is terrific."

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