Today the United States Senate confirmed William J. Baer to serve as Assistant Attorney General for the U.S. Department of Justice Antitrust Division. He should be sworn in shortly. Baer is a respected private practitioner and former Federal Trade Commission official. Clients should expect Baer to be thoughtful and effective as the United States’ top antitrust official, but to continue the far-reaching enforcement program of the Obama Administration.
Baer, until this week head of the antitrust practice group of Arnold & Porter LLP, is regularly listed among Washington’s top competition lawyers. One of his top victories was against his new employer, successfully defending General Electric against DOJ charges that it conspired with South Africa's DeBeers Consolidated Mines to fix prices for industrial diamonds. He twice has worked at the FTC, including four years as the agency's Director of the Bureau of Competition in the late 1990s. At the FTC he helped institute a more aggressive enforcement approach by bringing several major lawsuits, including the FTC challenge of Staples’ acquisition of Office Depot and exclusionary conduct cases against Toys R Us and Intel. In a number of merger reviews, he took the then-unprecedented step of requiring companies to make divestitures up front to win approval for some mergers.
Baer's confirmation comes nearly a year after his nomination by President Barack Obama in February 2012. The division has been without a confirmed Assistant Attorney General for Antitrust since Christine Varney stepped down in August 2011. Since then that position has been filled by three interim chiefs – Sharis Pozen, Joseph Wayland, and Renata Hesse.
Baer is expected to continue the current policies of the Antitrust Division. The current antitrust officials at DOJ and the FTC too have pursued more intense investigations and novel theories than their recent predecessors. At his Senate confirmation hearing in July, Baer told lawmakers that he supported reinstating a ban on resale price maintenance and would welcome action by Congress to repeal the Supreme Court’s 2007 Leegin decision, which replaced per se illegality for minimum resale price maintenance with the rule of reason. In Baer’s view, Leegin creates confusion where there once was "well-settled law," and it conflicts with many state laws that continue to ban resale price maintenance. During his hearing, Baer also noted that sound economic analysis is fundamental to good antitrust enforcement, and he vowed to be mindful of the risks posed by over-enforcement. Baer also spoke of the importance of cross-border cooperation for multi-jurisdictional mergers in order to avoid inconsistent outcomes brought about by multiple reviewing agencies.
Baer's nomination was supported by a long list of former assistant attorneys general from both political parties. The Senate Judiciary Committee approved Baer's nomination in September by a 12 to 5 vote. Today he was confirmed by a Senate vote of 64-26.
Attorney General Eric Holder issued a press release on the confirmation: "Bill is 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," said Attorney General Holder. "I have no doubt that he will lead the Antitrust Division effectively in its vigorous enforcement of the antitrust laws."