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William Baer as Quarterback in the DOJ's Antitrust Division
The Legal Intelligencer
On December 31, 2012, amid fiscal cliff talks, the U.S. Senate confirmed William J. Baer as the U.S. Department of Justice's assistant attorney general for the Antitrust Division by a vote of 64-26. The Antitrust Division is the federal agency primarily responsible for reviewing mergers and enforcing the antitrust laws of the United States through criminal prosecution and civil lawsuits. Baer is considered highly qualified to lead the Antitrust Division given his 35 years of antitrust experience and his stature in the antitrust community.
Baer's nomination by President Obama in February 2012 marked the continuation of the Obama administration's mandate to take steps to increase antitrust enforcement in order to foster increased competition in the United States. The Senate Judiciary Committee approved Baer in September 2012 by a 12-5 vote. Since that time, Baer had awaited final Senate approval. Baer is the first head of the Antitrust Division to be confirmed by the full Senate since Christine Varney, who took the position in 2009 and stepped down in August 2011. Obama nominated Varney just days after his first inauguration in 2009. Her tenure proved controversial, including the decision to shut down four of the division's seven local offices, many after 50 years of stellar service. Those offices are Philadelphia, Atlanta, Dallas and Cleveland.
Nevertheless, over the past four years, the Obama administration has succeeded in ushering in a new era of heightened criminal and civil antitrust enforcement. During the 2012 fiscal year, the DOJ collected a record $1.1 billion in criminal antitrust fines, including the $500 million fine U.S. District Judge Susan Illston of the Northern District of California ordered AU Optronics Corp. to pay after a jury found the company and two executives guilty of a price-fixing conspiracy. That $500 million fine was the largest fine ordered in over 10 years in a DOJ antitrust case. The DOJ had sought a $1 billion fine. The Antitrust Division also recorded increased penalties for individual criminal defendants during fiscal year 2012, including the sentences ordered by Illston for the two executives from AU Optronics Corp. to three years in prison and a $200,000 fine each.
Another example of aggressive and successful enforcement by the Antitrust Division under the Obama administration was the August 2011 move to block the $39 billion acquisition of T-Mobile USA by AT&T Inc. that demonstrated the DOJ is more than willing to take the litigation risk associated with complex cases. The Antitrust Division filed suit alleging that the combination of the country's second- and fourth-largest wireless carriers would "substantially lessen competition" and violate antitrust laws. In December 2011, AT&T announced that it would permanently end its merger bid, acknowledging that it could not overcome opposition by the Obama administration.
Corporate America should expect Baer to continue and perhaps escalate such aggressive antitrust enforcement. Prior to his confirmation, Baer told the Senate Judiciary Committee that he believed the Antitrust Division had "been moving in the right direction" and vowed vigorous enforcement of the antitrust laws. Baer also told the Senate Judiciary Committee that he supported efforts to repeal legislatively the U.S. Supreme Court's 2007 decision in Leegin Creative Leather Products v. PSKS, which would result in the reinstatement of per se illegality under Section 1 of the Sherman Act for vertical price restraints. Such a repeal would make proving the illegality of vertical price restraints far easier for enforcers because it would eliminate the need to study the reasonableness of the restraints in light of real market forces at work (as the Supreme Court required under its rule of reason analysis).
Baer's track record likewise suggests he is interested in making antitrust enforcement easier and continuing the Obama administration's active enforcement trend: Baer was known as a remarkably aggressive and talented antitrust enforcer during his tenure as the U.S. Federal Trade Commission's director of the Bureau of Competition. The FTC, like the Antitrust Division, polices monopolistic behavior by reviewing mergers to ensure they comply with antitrust law and prosecuting antitrust violations. Under Baer's leadership, the FTC's antitrust enforcement was considered more aggressive than it had been in the prior 25 years.
In the debate regarding Baer's fitness to lead the Antitrust Division, his professional qualifications for that role were not questioned. Baer has built his career rotating between federal service and private practice, spending all 35 years focusing his work in the field of antitrust. In that sense, he is truly an antitrust expert and not merely a political appointment. After graduating from Stanford Law School in 1975, Baer held a number of positions at the FTC until 1980. From 1980 to 1995, Baer practiced with Arnold & Porter, becoming a partner in 1983. In 1995, Baer became the director of the FTC's Bureau of Competition and served in that position until 1999. Baer rejoined the partnership at Arnold & Porter in 2000 and has served as the head of the firm's antitrust practice group since then.
Despite his professional qualifications, Baer's nomination sparked a minor controversy, which Senator Charles Grassley, R-Iowa, suggested was due to an unspecified issue with Baer's background investigation. To discuss undisclosed concerns regarding Baer, the Judiciary Committee took the unusual step of going into a closed session in September 2012. Grassley and 25 other Republican senators ultimately voted against Baer, while 64 senators including 14 Republicans voted for Baer.
U.S. Attorney General Eric Holder called Baer "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" and noted that he has "no doubt that [Baer] will lead the Antitrust Division effectively in its vigorous enforcement of the antitrust laws." Baer will need to pick up the pieces of a division somewhat demoralized by the closing of four division offices. He seems the right person for the job and committed to quarterbacking the tough plays on the domestic and international gridiron. Stay tuned.
Carl W. Hittinger is the chairman of DLA Piper's litigation group in Philadelphia, where he concentrates his practice in complex commercial trial and appellate litigation with a particular emphasis on antitrust and unfair competition matters. He can be reached at 215-656-2449 or email@example.com. Courtney G. Saleski is a partner in the litigation group at the firm in Philadelphia, where she focuses on appellate, white-collar criminal, complex civil and antitrust litigation. She can be reached at 215-656-2431 or firstname.lastname@example.org.
This article originally appeared in The Legal Intelligencer.