In the past 12 months, leadership in the two federal agencies tasked with enforcing our nation’s antitrust laws has drastically changed. At the Antitrust Division of the Department of Justice, the top antitrust enforcer the assistant attorney general for the Antitrust Division has turned over several times with three different people serving in that role in an "acting" capacity and finally a fourth, William Baer, taking the role on a nonacting basis in late December 2012. Likewise, at the Federal Trade Commission (FTC), where five commissioners share top enforcement responsibility, two new commissioners have been sworn in since April 2012, a third seat sits empty, and a new chair has been appointed. With this turnover, many are wondering whether the agencies’ willingness to litigate during President Obama’s first term will continue. The simple answer is yes with the more open question being whether there will be any change at the FTC.
During the past several years, the Antitrust Division significantly bolstered its litigation capabilities and then began to flex its litigation muscles by bringing more cases and demonstrating a willingness and ability to take those cases to trial and win. Most prominently, in August 2011, the division sued to block AT&T Inc.’s proposed acquisition of T-Mobile USA Inc., leading the companies to abandon the deal four months later. The division also sued to block H&R Block Inc.’s proposed acquisition of TaxACT and ultimately secured an injunction prohibiting the merger after several weeks of trial.
