Justice Antitrust Pick Pledges Anthem Recusal Ahead of Hearing

Stay current on the latest developments from agencies including the CFPB, Federal Reserve, FDIC, and OCC to advise clients on real-life regulatory situations.

By Liz Crampton

President Trump’s pick to lead the Justice Department’s antitrust division has promised to step aside from issues involving his past work as a lobbyist, which could help with expected questions from lawmakers in his Senate confirmation hearing set for April 26.

Sen. Amy Klobuchar (Minn.), ranking Democrat on the Judiciary committee’s antitrust panel, has indicated that she’ll question Makan Delrahim, the nominee, on potential conflicts of interest. Delrahim’s past work lobbying on behalf of companies for proposed mergers could be a point of contention during the hearing, but he’s still expected to be confirmed.

Delrahim, who lobbied for Anthem Inc. in its effort to merge with Cigna Corp., has promised to recuse himself from matters involving the health insurer, according to a questionnaire Delrahim submitted to the Senate Judiciary Committee earlier this month. Anthem and Cigna are appealing a federal district court decision siding with the Justice Department in its suit to block their $54 billion merger as anticompetitive. Anthem has pointed to the change in administration as a possible path forward.

Confirmation hearings for assistant attorney general positions in the Justice Department’s antitrust division tend to be bipartisan, Mary Strimel, a partner at McDermott, Will & Emery, told Bloomberg BNA.

“I think the antitrust bar as a whole views Delrahim as a centrist nominee,” Strimel said. “I think that in the range of Republican options for a nominee, Democrats can’t be too disappointed because I think he’s within the mainstream of antitrust enforcement, both on the civil side and on the criminal side as well,” she said.

Past Recusals

It’s not uncommon for antitrust officials to recuse themselves from investigations involving prior employers, Strimel said. “That request is not unusual,” she said.

Others who’ve recused themselves include former head of the antitrust division in the Obama administration, Bill Baer, who didn’t take part in reviewing Comcast’s $45 billion purchase of Time Warner Cable in 2014. Baer represented General Electric and NBCUniversal as a lawyer at Arnold & Porter LLP when Comcast acquired a majority stake in NBCUniversal.

Thomas Barnett, head of the division under George W. Bush, recused himself from an antitrust probe into Microsoft because former law firm worked for the company.

Klobuchar said in a statement provided to Bloomberg BNA that she plans to ask Delrahim if he will “commit to being independent, focusing on the merits of each case, not on interference from the White House.”

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 was seen as unusual.

“I will, of course, ask him about conflicts of interest and if he will recuse himself on matters related to his prior employment, as required by law, to ensure the integrity of the antitrust division,” she said. Klobuchar has criticized antitrust officials for not being active enough with enforcement.

A spokesman for Sen. Mike Lee (R-Utah), chairman of the antitrust subcommittee, said he’ll focus on Delrahim’s “background and qualifications.”

In the Senate questionnaire, Delrahim said he will consult with the Department of Justice’s ethics office about which cases he must rescue himself from based on his lobbying work.

“Even though I have no affiliation with my former law firm, Brownstein, Hyatt, Farber, Schreck, I anticipate that I will have recusals resulting with my prior affiliation with them,” he said.

Delrahim has close ties to the Senate Judiciary committee, previously working for the panel’s most senior Republican, Sen. Orrin Hatch (Utah). Delrahim, who most recently advised President Trump on judicial nominations, won immediate praise from Hatch following his nomination to the Justice Department.

Delrahim would be returning to the antitrust division, where he worked as deputy assistant director from 2003 to 2005 and focused on intellectual property law and international antitrust enforcement.

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

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Antitrust on Bloomberg Law