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In January 2000, when America Online Inc. approached Jones, Day, Reavis & Pogue’s Joe Sims about taking on the antitrust work in its merger with Time Warner Inc., he figured the combination would be approved in six to eight months. Famously, the review took all year, becoming only the latest reminder that antitrust review isn’t an afterthought for dealmakers anymore. These days, antitrust attorneys have a seat at the negotiating table. The Federal Trade Commission had never seen before a melding of new- and old-media empires like the AOL�Time Warner combination. The unprecedented two-headed beast that the Washington, D.C.�based Sims escorted into a Federal Trade Commission hearing room drew lingering crowds of competitors’ scouts, public interest group analysts, and FTC commissioners. Meanwhile, during the hullabaloo, the prospects of the markets in which the companies were said to be competing, like interactive television, cable access, and Internet service, were shifting week by week. The FTCcommissioners didn’t want to leave the shaping of this decision to their staff and the principals, which is their usual course. “The commissioners were fascinated by this combination, and quite unclear what its competitive implications were,” says Sims. “The complication was that it was always very difficult for them to articulate what they were concerned about.” The kibitzing of the commissioners, says Sims, limited the motion of the man across the table, FTC Bureau of Competition director Richard Parker. “They were telling him what to do,” says Sims. Parker confirms that the commissioners were involved, but says that was no surprise, since this was the biggest merger to date. Before the merger, AOL and Time Warner had few overlapping businesses. Yet for the new partners to walk away as one supergiant, Sims and Time Warner antitrust counsel Robert Joffe of New York’s Cravath, Swaine & Moore had to assure access to its cable lines for competing programmers, guarantee that its instant messaging business would be made compatible with those of its business foes, and agree to notify the agency if other companies complained it was shutting out their material on interactive television. Sims’s pivotal role in the AOL�Time Warner deal is no fluke. The many mergers and acquisitions among banks, energy suppliers, and utilities jolted federal trustbusters into newly aggressive stances. Anne Bingaman and then Joel Klein revved up the Department of Justice’s antitrust division, while Robert Pitofsky dug in as chairman of the FTC. “I’ve made a lot of criticisms of Pitofsky and Bingaman,” Sims jokes, “but I wasn’t criticizing them for their abilities to create demand. The antitrust bar has been fat, dumb, and happy.” Sims, 56, grew up in the domain of the U.S. Air Force, attended five high schools, and eventually landed at Arizona State University’s law school. His nomadic journeys stopped there: He worked in the U.S. Department of Justice from 1970 to 1978, and has been at Jones Day since then. There, he guides 25 antitrust lawyers worldwide — one of whom, Charles James, is the nominee to run the Justice Department’s antitrust division. Sims says that 50�60 percent of his matters come from clients who, like AOL, seek him out; the rest is work from existing Jones Day clients. Last year, much of his focus was on the rapidly concentrating media and telecommunications industries. Indeed, when AOL announced its intention to merge with Time Warner in January 2000, Sims was already busy advising two other media companies on combinations. In the spring, he walked a CBS Corp. merger with Viacom Inc. through the Department of Justice. In the summer, he ushered through TV Guide Inc.’s merger with Gemstar International Group Ltd. “There was a terribly unpleasant time of six weeks or so in the spring when all three of them were active, which is more than I can handle,” Sims recalls. During 2000, Sims also counseled vitamin-maker Aventis Pharma AG on its civil price-fixing cases, helped the private Internet Corporation on Assigned Names and Numbers negotiate its second year of governing the Internet and advised AOL on its role in Microsoft Corporation’s antitrust trial. With the Clinton administration gone, and the arrival in Washington of George Bush and his rhetoric about relaxed regulation, does Sims expect the AOL�Time Warner approval to be his swan song? Don’t bet on it. Sims predicts that the incoming bunch of antitrust inspectors will continue to poke and prod. “There’s going to be much less change from Clinton to George W. Bush” than there was from the Carter to the Reagan administrations, he says. Which means that Sims will still need to be creative. “I pretty strongly believe that almost every possible transaction can be done if it’s done correctly,” he says — demonstrated yet again, although perhaps just barely, by AOL and Time Warner.

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