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By Liz Crampton
The Justice Department’s antitrust division under Makan Delrahim, nominated as assistant attorney general, is likely to track Republican predecessors, perhaps none more so than someone who held the job a quarter century ago.
Delrahim’s tenure could closely parallel the time of James Rill, who held the job during the George H. W. Bush administration, said Peter Levitas, a partner at Arnold & Porter Kay Scholer LLP, at an annual gathering of antitrust lawyers and government officials. Like Rill, Delrahim is interested in global antitrust enforcement cooperation.
The prediction was one of many pieces of well-informed speculation about Delrahim’s possible impact offered at the American Bar Association’s Antitrust spring meeting in Washington. The nominee himself was absent from the conference, keeping a low profile before his Senate confirmation hearing.
The White House officially named Delrahim on March 27, the eve of the conference, giving attorneys something to talk about.
Many attendees – who frequently referred to him as just “Makan” – have confidence in Delrahim based on his previous stints as a Senate Judiciary Committee aide and as a deputy in the antitrust division. Questions, however, remain about Delrahim’s specific views and how much influence President Donald Trump might have over the division.
“A number of people are wondering what will be the role of this White House in terms of merger enforcement and will it be different from the past,” said Levitas, a former deputy director in the competition bureau of the Federal Trade Commission.
On the same panel, Leah Brannon, a partner at Cleary Gottlieb, predicted that “once leadership is in place and settled in, things will operate as normal.” But, she added, “We don’t know.”
Alluding to Trump’s off-the-cuff statements about pending mergers, she added, “We’ll have to keep an eye on Twitter.”
Antitrust observers guessed that Delrahim will surround himself with deputies that have a deep understanding of antitrust law, particularly in an area such as mergers.
Career staff, the “backbone” of the antitrust division, “stands ready to carry out [Delrahim’s] priorities,” said Brent Snyder, the acting head of the antitrust division.
When it comes to pending mergers, “he’s going to have a tough job,” said William Kovacic, a former FTC chairman in the George W. Bush administration. Even if the antitrust division is deliberate and objective in its analysis, if its decisions go in the direction of what Trump appears to want, they will look suspect, he said. “You don’t want to be seen as part of an erratic decision-making process.”
Throughout the campaign, Trump spoke of his opposition to AT&T’s proposed $85 billion bid for Time Warner. After Trump was elected, he met with executives from Bayer AG and Monsanto Co. to discuss their proposed deal. Trump’s involvement with pending mergers in front of the Justice Department is unusual, and it could make the Delrahim’s job more difficult.
The ABA’s antitrust section has made numerous specific requests of the FTC and the DOJ to provide more transparency in their decision-making process, including more guidance documents and closing statements on mergers they have reviewed and cleared.
By explaining their reasoning, Brannon said, “that will give people more confidence.”
There are some questions that won’t be answered at the Justice Department until new agency heads are installed. In the government’s suit against American Express Co. for barring merchants from steering customers to Visa or Mastercard, the antitrust division’s director of civil enforcement Patricia Brink said the agency asked for an extension until May 5 for appealing to the U.S. Supreme Court.
They made the request “to allow the new leadership to consider” its position, she said. The government lost that case on appeal in September.
Delrahim brings to the table considerable experience in intellectual property and patent issues.
“Makan is an expert in IP,” said Kovacic, who worked with Delrahim while both were in the government. He assured the audience that the prospective head of the antitrust division wouldn’t overextend competition laws at the expense of IP.
“Makan was a skeptic about expansive efforts to apply competition law to control apparent imperfections in the patent process,” he said.
Maureen Ohlhausen, acting chairman of the FTC, has expressed similar caution about IP issues, Kovacic said.
“I would anticipate the FTC and DOJ backing away from some of the policy positions, at least with tone and approach, that we’ve seen from the agencies as a whole,” he said.
To contact the reporter on this story: Liz Crampton in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Fawn Johnson at email@example.com
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
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