CLOSEClose Law.com Menu
 
X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Even by Washington standards, antitrust lawyer Joe Sims’ reaction to recent complaints of conflict of interest is coolly blas�. “Just spell my name correctly,” says Sims, a partner at Jones, Day, Reavis & Pogue in Washington, D.C. The attorney is known for successfully guiding AOL Time Warner Inc. through antitrust review. Now, Sen. Ernest Hollings, D-S.C., is promising to investigate just how Sims was the author of a new agreement that divides responsibilities between the Department of Justice and the Federal Trade Commission. The pact will mean that future AOL media mergers — of which there could be many — will likely go to the DOJ, where his former law partner, Charles James, heads the enforcement division, and another former colleague whom he trained, Deborah Majoras, is second in command to James. “There’s nothing that’s going to happen that I’ll have to prepare for,” he says of Hollings’ probe. “People with a particular interest are trying to come up with whatever they can find to upset this arrangement between the two agencies because they think their interests would get more traction at the FTC than the DOJ,” he said. Hollings may have his hands full. Sims, one of a coterie of top antitrust lawyers in Washington, D.C., is known as brash and pugnacious, in a branch of the law where pugnacity is atypical. His style, however unorthodox for antitrust lawyers, hasn’t hampered his win-loss record. In 1987, for example, Sims was defending a merger between the only two hospitals in Lynchburg, Va. Opening his case, he announced to FTC lawyers that his clients, Lynchburg General and Virginia Baptist, had divided their market, illegally, for years. That shouldn’t matter, he argued: There were good reasons why the deal should pass review. The boards of the hospitals cooperated for more than a decade since the late 1960s to keep down costs, said George Dawson, the chief executive officer of Centra Health, the newly named combined entity. The two decided to formalize their relationship by merging in 1985. But regulators were starting to crack down on hospital mergers, and it was uncertain whether Lynchburg General and Virginia Baptist could pull it off. “The reaction we had from some attorneys was that the deal wouldn’t succeed,” Dawson said. “Joe’s approach from day one was, ‘Let’s figure out how we can be successful.’” Sims advised hospital officials to meet with local leaders, physicians, the chamber of commerce and the Blue Cross of Virginia to show that the merger would benefit the community. The discussion went on for a year and a half. He also told them to carry out an economic analysis by an outside firm on the costs at the two hospitals. The FTC let the deal close without a review at the end of 1986, and when the FTC decided to revisit the case about a year later during another hospital merger review, the deal survived further scrutiny. “Our case was that this was a merger that was already very openly discussed in our community,” Dawson said. “Because there were no disaffected parties, and there was widespread support for it, he indicated to the FTC that this wouldn’t be the place to try a test case” opposing the deal. In the 1990s, the FTC would go on to battle eight mergers of hospitals that served the same communities and lose five of those cases in court. Sims joined Jones Day’s new D.C. office in 1978. In addition to the AOL-Time Warner deal, he has led the antitrust defenses of other big mergers, such as Viacom-CBS and Gemstar-TV Guide. He now heads the firm’s technology practice. Sims fell into the legal profession almost by accident. In 1967, waiting to be drafted, he took a job at the Arizona Highway Department after college. It was an entry-level position, menial and tedious, doing typing tests and classifying jobs. It was a cubicle-mate’s lifelong desire to become a lawyer that flipped the light switch for Sims. “I had never given one moment’s thought to being a lawyer or for that matter almost anything else,” he says. He graduated from the nascent Arizona State University College of Law, and with that distinctly non-Ivy League credential, joined the DOJ’s antitrust division. “For me, government service was the great leveler,” he says. He remained at DOJ for eight years — longer than many other DOJ colleagues in revolving-door Washington. For the last four years of his stint there, he was the deputy to the head of antitrust enforcement, the same position Majoras holds. Even before the DOJ/FTC fracas, Sims’ has been controversial. Critics and competitors have called him bellicose and say he takes extreme positions that can alienate regulators. Still, he wins. “He’s a very direct, no-nonsense, don’t-hide-the-ball kind of person,” says Toby Singer, a partner at Jones Day in Washington, D.C., who frequently faced Sims as an FTC staff lawyer in the 1980s. “I think it’s one of his best qualities. With him you know there’s no hidden agenda.” He says that no matter how he may sound to regulators, he doesn’t have to convince them that his views are the same as theirs. He simply has to show that they can’t prove their case in court. “There are a lot of people who view the merger review process as a regulatory process like the FCC — where you have to go to the regulators and ask for their permission. I don’t believe that’s this process,” he says. The AOL-Time Warner deal closed after a lengthy, noisy FTC review process in December 2000. While the $106 billion deal is the one most frequently linked to Sims, he does not consider it a major achievement. He says the FTC was wrong to extract concessions. Sullivan & Cromwell partner Robert Joffe represented TimeWarner, while Sims represented AOL. “The AOL-TimeWarner deal had in my opinion no legitimate antitrust issues,” Sims said. “None. Zero. It had a lot of political issues. And the FTC commissioners unfortunately let those issues cloud their substantive judgment.” The deal drew the ire of consumer groups as well as competitors such as Walt Disney Co. The FTC, in approving the deal, required concessions to ensure that the company keeps its cable lines open to rival ISPs and AOL open to rivals’ media and publishing content. If consumer groups were unhappy over the merger before, they’re outraged now at Sims’ role in the DOJ-FTC agreement. “I am flabbergasted by his public reaction that he doesn’t see any problem,” said Jeffrey Chester, executive director of the Center for Digital Democracy, an advocacy group that pushed the FTC to hold out for concessions. “He engaged in a secretive process that was undemocratic and anti-consumer. [FTC Chairman Timothy] Muris and James fashioned a secretive process to radically restructure the way antitrust is done with a particular concern over media and Internet-related mergers. It would have behooved the FTC and DOJ to have a public process, to identify in advance who these outside advisers were and the relationship between those advisers and clients. “I find it deeply troubling that Mr. Sims shaped the decision that ultimately would impact his clients.” Copyright (c)2002 TDD, LLC. All rights reserved.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.