Baer to Be Nominated as Antitrust Chief

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

President Barack Obama intends to nominate Bill Baer to serve as Assistant Attorney General in charge of the Department of Justice Antitrust Division, according to a February 3 White House announcement. Baer would succeed Acting Assistant Attorney General Sharis A. Pozen, who will resign effective April 30 to return to private practice.

Currently the head of the antitrust group at the Washington, D.C. office of Arnold & Porter, LLP, Baer has held a number of high-level positions at the Federal Trade Commission, including director of the FTC’s Bureau of Competition in the 1990s.

During his tenure, the Bureau of Competition was very active in the merger enforcement area. Among the most notable cases was the FTC’s successful challenge to the merger of office supply superstores Staples and Office Depot (1997-2 Trade Cases ¶71,867, 970 F. Supp. 1066 (D.D.C. 1997)).

After earning a J.D. at Stanford Law School, Baer began his legal career in 1975 as a trial attorney for the FTC Bureau of Consumer Protection. He joined Arnold & Porter in 1980, becoming a partner at the firm in 1983. In his practice, Baer represents a broad range of companies in U.S. and international cartel investigations, mergers and acquisition reviews, and in antitrust litigation, it was noted.

Varney Confirmed by Senate to Head Department of Justice Antitrust Division

This posting was written by Jeffrey May, Editor of CCH Trade Regulation Reporter.

The U.S. Senate on April 20 confirmed the nomination of Christine Anne Varney to serve as Assistant Attorney General in charge of the Department of Justice Antitrust Division. Eighty-seven senators voted to confirm Varney. Only one, Senator Jim Bunning (Kentucky), voted no, with 11 senators not voting.

Varney will return to government service after more than a decade as a partner at Hogan & Hartson’s Washington, D.C. office. There she headed up the firm’s Internet Practice Group. She also recently served on President Barack Obama’s transition team.

During the Clinton Administration, Varney was an FTC Commissioner from 1994 to 1997. Prior to becoming an FTC Commissioner, Varney was Secretary to the Cabinet.

Varney received her J.D. from Georgetown University in 1986. She received her M.P.A. from Syracuse University in 1978, and her B.A. from The State University of New York, University at Albany in 1977.

Varney’s nomination was announced on January 22, along with three other assistant attorney general nominees: David Kris, Assistant Attorney General for National Security; Tony West, Assistant Attorney General for Civil Division; and Lanny Breuer, Assistant Attorney General for Criminal. West and Breuer were also confirmed by the Senate on April 20. Kris was confirmed on March 25.

In an April 20 news release, announcing the confirmations on April 20, Attorney General Eric Holder said: “These exceptional individuals will help lead the Department with dedication, sound judgment and integrity, whether it’s aggressively enforcing the antitrust laws, overseeing civil enforcement in the Department’s largest litigation division, or combating traditional crimes such as financial fraud or drug trafficking.”

He added, “I look forward to working with them to advance the interests of justice on behalf of the American people.”

A report on Varney's testimony at a Senate Judiary Committee confirmation hearing (Trade Regulation Talk, March 11, 2009) appears here.

Nominee Varney Describes Focus as Antitrust Chief

This posting was written by John W. Arden.

In a statement delivered in a confirmation hearing before the Senate Judiciary Committee on March 10, Christine Varney, nominee as Assistant Attorney General in charge of the Antitrust Division, described her focus and qualifications for the job.

“Strong antitrust enforcement and respect for our competition statutes are the primary safeguards of our distinctive free enterprise system,” said Varney, a Washington lawyer who served as Federal Trade Commissioner during the Clinton Administration. She set out three main areas on which she would focus if confirmed.

Areas of Focus

“First, we must rebalance legal and economic theories in antitrust analysis and enforcement,” she said. “The Antitrust Division can provide strong intellectual leadership in competition policy by advancing our collective understanding of competitive behavior and adapting our thinking to reflect our ever evolving markets.”

“Second, we need renewed collaboration between the Antitrust Division and the FTC, whose policies and processes have unfortunately diverged too frequently in recent years,” Varney observed. Such divergence and conflicts lead to uncertainty for consumers, businesses, and overseas antitrust enforcers.

“Third, we must continue our cooperation with worldwide antitrust authorities, discussing our differences with international enforcers respectfully and engaging with emerging antitrust regimes, such as China and India as they implement new antitrust laws.”

Antitrust Enforcement During Economic Crisis

Varney addressed the question of whether antitrust enforcement should be pursued in the current economic crisis. “I believe it is important to remember that robust antitrust enforcement is essential for the free market to function properly,” she said.

“In these tough economic times, more than ever, it is important to remember that clear and consistent antitrust enforcement—protecting competition and thus consumers while being conscious of the need for economic stability—is essential to a growing and healthy free market economy.”

The nominee expressed confidence that she is “well equipped” to meet the challenges of the position of chief antitrust enforcer. “I will approach the challenged we face from my unique vantage point as a former FTC Commissioner, which I believe will help me to bridge the gap that exists between the antitrust agencies on several crucial substantive and procedural issues.”

Varney’s written testimony appears here.

Merger Enforcement

The statement was followed by questions from the members of the Judiciary Committee, according to a posting to an ABA antitrust listserv by David Balto. Senator Herb Kohl (D-Wis.) asked Varney for her assessment of the "sharp cutback" in merger enforcement and enforcement against dominant firms during the Bush Administration. The nominee decline to discuss particular cases, but said she would enforce the law vigorously and stop horizontal mergers that cuase competitive harm.

Resale Price Maintenance

When asked about her view of the Supreme Court's decision in Leegin Creative Leather Products, Inc. v. PSKS, Inc., Varney said she was surprised by the decision but believed that the law allowed the Department of Justice room to prosecute resale price maintenance. If not, she might support further legislation on the issue.

DOJ Monopoly Report

Senator Russ Feingold (D-Wis.) asked if Varney would review and potentially repudiate the Department of Justice's September 2008 report on single firm monopoly conduct ("Competition and Monopoly: Single-Firm Conduct Under Section 2 of the Sherman Act”). The nominee responded that she would review the report and that she felt that the conclusions the report drew were not appropriate. She said she would work with te Division staff and the FTC to determine if the report should be revised or some other action taken.