Antitrust Nominee’s Ties to Judicial Panel Could Ease Confirmation

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By Liz Crampton

President Donald Trump’s pick to lead the Justice Department’s antitrust division will return to familiar territory when he comes before the Senate Judiciary Committee for his confirmation hearing.

The panel’s most senior Republican, Sen. Orrin Hatch (R-Utah), first hired Makan Delrahim as an intern and then ultimately promoted him to chief counsel and staff director.

The personal connection could help ease Delrahim’s confirmation on a panel where members rarely block former aides of either political party. Delrahim also brings considerable antitrust experience, having once served as deputy assistant director in the antitrust division.

“He understands the agency from the inside,” Leslie Overton, an antitrust partner at Alston & Bird, told Bloomberg BNA. Overton overlapped with Delrahim in his previous stint at the antitrust division.

The nominee also won immediate praise from the current antitrust subcommittee chairman, Sen. Mike Lee (R-Utah). The current chairman of the Judiciary Committee, Sen. Charles Grassley (R-Iowa), hasn’t issued a public statement, and a committee spokeswoman didn’t respond immediately to request for comment.

Hatch, who is now the chairman of the Finance Committee, will be an important ally for Delrahim as he undergoes Senate confirmation. Following Delrahim’s nomination, Hatch said in a statement that Delrahim is a “tireless worker, a trusted confidante, and a sharp policy mind” and that he has “no doubt that Makan will serve our nation well.”

‘Over-Enforcement Can Stifle Innovation.’

A confirmation hearing hasn’t been scheduled. But Lee applauded the nomination in a March 28 statement provided to Bloomberg BNA.

“He understands the ultimate purpose of antitrust law is to protect competition, not competitors, and recognizes that over-enforcement can stifle innovation that benefits consumers,” Lee said.

It remains to be seen whether Delrahim will see opposition from Democrats. Sen. Amy Klobuchar (D-Minn.), the ranking member on the antitrust subcommittee, said in a statement provided to Bloomberg BNA that she’s looking forward to the hearing and “discussing the current wave of concentration across industries.”

Klobuchar also referenced Delrahim’s lobbying on behalf of companies to get mergers approved. Recently Delrahim lobbied for Anthem Inc. in its $54 billion bid to acquire Cigna Corp., a possible point of focus as he moves through the confirmation process. Anthem is currently appealing a lower court decision stopping the proposed Cigna merger, and lawyers for the insurer have said the change in administration could revive hope for the deal.

“I will also, of course, ask him if he will recuse himself from matters related to his prior employment, as required by law, to ensure the independence and integrity of the antitrust division,” Klobuchar said.

IP Experience

Delrahim was nominated March 27 and has experience in intellectual property law and international antitrust enforcement. As deputy assistant director in the antitrust division, Delrahim relied on his training as a patent lawyer to focus on the application of antitrust law to intellectual property. He spoke at several events on the topic.

His interest in IP issues dovetails with that of Federal Trade Commission Chairman Maureen Ohlhausen, who has often spoken about the need to protect intellectual property to promote competition.

It’s hard to predict how Delrahim could rule on deals involving close competitors as his antitrust record doesn’t clearly show where he stands on regulating horizontal mergers. But his ties to Bush-era Republicans, combined with Lee’s endorsement, suggest he would adopt a view that encourages less interventionist antitrust enforcement.

Hatch Wanted Him Back

In one of his first jobs in politics, Delrahim was an intern on Hatch’s staff covering health issues for the Judiciary Committee. He left that job to practice law for several years at Patton Boggs but then returned to the Senate at Hatch’s urging. While on the committee the second time, Delrahim worked on antitrust policy and was promoted to chief counsel and staff director of the full committee.

Hatch described a close relationship with Delrahim in a speech after he was nominated by President George W. Bush to work in the DOJ in 2003. Hatch described Delrahim as his “right-hand man” who helped with the passage of changes to the Hart-Scott-Rodino Act, which sets the steps that companies must follow when undergoing antitrust reviews of their transactions.

Delrahim has most recently served as deputy counsel to the president, advising Trump on judicial nominations.

Big Mergers Awaiting Decisions

In the top antitrust role at the DOJ, Delrahim would oversee investigations of big pending mergers, like AT&T Inc’s proposed $85 billion purchase of Time Warner Inc. Delrahim has a different view of the billion AT&T-Time Warner tie-up than Trump, who said during the campaign that he opposed the merger.

In an interview in October, Delrahim told Canadian business news channel BNN that he didn’t expect the deal to encounter antitrust problems because it doesn’t raise the same hurdles as a merger of two direct competitors, according to Bloomberg News.

While the AT&T-Time Warner deal will be a major test of the Trump administration, Delrahim will oversee other investigations expected to wrap up soon that will indicate the division’s approach. Dow Chemical Co’s purchase of DuPont Co. has been held up by the Justice Department for over a year, along with Bayer AG’s bid for Monsanto Co. The Dow-Dupont tie-up cleared EU antitrust regulators with conditions on March 27.

To contact the reporter on this story: Liz Crampton in Washington at lcrampton@bna.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bna.com

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