Now that the election has been concluded, a fair number of senior federal officials will be finalizing their plans to move back to the private sector, be it industry or academia. The federal antitrust regulators are no different, and perhaps so to even a greater degree. Change is in the wind and it is coming quite soon.
U.S. Department of Justice Antitrust Division
Since Christine Varney left the Division in August of 2011, there have been three (3) acting Assistant Attorney Generals in charge of the Division—Sharis Pozen, Joe Wayland and Renata Hesse. Joe left as recently as November 16th when Renata assumed her duties. It is unknown how long she will remain in the position. Of particular note is her experience at the Federal Communications working on the ATT/T-Mobile transaction. Given the likely short lived nature of her tenure it is unlikely that Renata will make changes at the Division.
The President’s choice of a permanent replacement, Bill Baer who was voted out of the Senate Judiciary Committee in September on a 12-5 vote with Republican Senators Mike Lee and Lindsay Graham joining the Democratic majority, is waiting full Senate confirmation. Bill is a highly regarded antitrust practitioner with substantial experience representing private companies and acting as a federal prosecutor when he was director of the Federal Trade Commission’s Bureau of Competition. Bill is smart, engaging and candid. Based on his experience at the FTC, he is expected to be aggressive in challenges to mergers and non-merger conduct. Bill should be approved by the Senate by year end.
Two significant departures should be noted from Division Section leadership. First, Joshua Soven who was Chief of Litigation 1 has recently been replaced by Peter Mucchetti as acting Chief. Laury Bobish retired as Chief of the Telecommunications and Media Section and was replaced by Lawrence Frankel as acting Chief.
Federal Trade Commission
Starting with what is known, Republican Tom Rosch’s term as a Commissioner expired in October but he has announced that he will remain at the FTC until his replacement is approved by the Senate. Before the election the President nominated Republican Joshua Wright, a law professor from George Mason University who has a reputation as taking a narrow view on the FTC’s enforcement role, particularly in the application of Section 5 of the FTC Act, as Rosch’s replacement. To date Professor Wright has not been reviewed by the Senate Judiciary Committee.
FTC Chairman Jon Leibowitz has announced his intention to resign from the Commission, but it is likely that he will remain until the investigation of Google results in a complaint which the Chairman says should happen by the end of the year (Professor Wright and Commissioner Ohlhausen have publicly announced their opposition to such a complaint). The replacement of an FTC Chairman is triply important because the Chair typically appoints new directors of the Bureaus of Competition and Consumer Protection. Chairman Leibowitz’s replacement will likely come from the Commission in the persons of Commissioners Brill or Ramirez. The inside betting is that the choice will be Julie Brill who is described as an aggressive but sensible enforcer. Her particular area of interest is privacy but has been very active in the competition arena. With her nomination, the President would have an additional FTC nomination of a Democrat in order to maintain the 3-2 Democratic majority.
It appears that the aggressive enforcement posture that has been manifested by the Antitrust Division and the FTC will continue if not accelerate during the coming four years.