Originally published in Antitrust News & Notes, August 2011

While it is inevitable that senior leadership at the federal antitrust agencies will undergo change, the last few weeks have marked significant movement at the Antitrust Division (the "Division") of the Department of Justice (DOJ) and the Federal Trade Commission (the "FTC"). At the Division, Assistant Attorney General (AAG) Christine Varney resigned as Chief of the Antitrust Division on August 5, 2011, and was replaced by Acting AAG Sharis A. Pozen. At the FTC, Commissioner William Kovacic's term expires in September. His replacement, Maureen Ohlhausen, has been nominated by President Barack Obama, and awaits Senate confirmation. Also notable is that Leslie Overton has joined the Division as a special advisor to the AAG.

During her tenure, AAG Varney vigorously enforced antitrust laws on a variety of fronts — including civil merger and non-merger enforcement. On the merger front, Ms. Varney has been aggressive in pursuing court challenges to proposed mergers.1 Ms. Varney has also promoted the use of consent decrees to impose certain conditions on the parties' conduct before the Division allowed the merger to close. These consent decrees are designed to resolve the Division's competitive concerns without a court challenge. The consent decrees often require the divestiture of assets but sometimes include "behavioral remedies," which impose obligations on the parties, such as licensing and erecting and maintaining firewall provisions, and reporting obligations.

Ms. Varney's tenure also marked more active nonmerger civil enforcement of the antitrust laws. For instance, in February 2011, the Division brought the first lawsuit since 1999 that challenged an alleged monopolist's unilateral conduct under Section 2 of the Sherman Act.2

In what may prove to be her most durable achievements, under Ms. Varney's leadership the Division (along with the FTC) issued revised Horizontal Merger Guidelines,3 as well as a revised Policy Guide to Merger Remedies4 (without the FTC). Ms. Varney also vigorously defended the Division's record against assertions by certain FTC Commissioners that the Division was not aggressively enforcing the antitrust laws.

The new Acting Chief of the Division, Sharis Pozen, is widely expected to follow her predecessor's aggressive policies. In appointing her, Attorney General Eric Holder stated: "Sharis is a highly experienced antitrust enforcer and I am confident she will continue to lead the Antitrust Division in its mission to vigorously enforce the antitrust laws. Sharis has been actively engaged in all significant antitrust matters before the Division, and her appointment will ensure that the decision-making on pending antitrust matters is seamless."

Ms. Pozen came to the Division in February 2009 as the chief of staff and Varney's top deputy. Prior to joining the DOJ, Ms. Pozen worked in private practice, representing, among others, health care providers and physician hospital organizations. Since arriving at the DOJ, Ms. Pozen's most significant role has been as the lead antitrust official in the CPTN/Novell transaction, where the Division required the Microsoft-organized consortium CPTN to license certain Novell patents to the open source community as a condition to the consortium's proposed merger with Novell.

Commissioner Kovacic will depart the FTC in September after completing his term as one of the agency's five commissioners. Mr. Kovacic was appointed to the FTC in January 2006 by President George W. Bush. He previously served as the agency's Chairman from March 2008 until March 2009.

Ms. Ohlhausen is a practicing DC attorney whose practice focuses on privacy, data protection, and cyber security. Ms. Ohlhausen has previous experience at the FTC. From 2004 – 2008, she was a director of the FTC's Office of Policy Planning, where she headed the agency's Internet Access Task Force. She has also served as policy counsel for the trade group for Business Software Alliance.

Many believe that Ms. Ohlhausen's nomination signals the FTC's growing focus on online privacy, data security, and technology. Recently, the agency has pursued several investigations into consumer protection violations related to online privacy and data breaches. For instance, the FTC pursued actions against both Google and Twitter because their social media platforms permitted unauthorized access to their users' private information. While Ms. Ohlhausen's record is notable for her technology and internet prowess, she is a seasoned competition lawyer that we suspect will support the FTC's efforts to enhance vigorous antitrust law enforcement.

In addition to these changes, two other moves at the Division merit mention. Katherine Forrest likely will leave the Division after being nominated for a district court judgeship in the Southern District of New York.

As indicated above, Leslie Overton has joined the Division as a special adviser to the AAG. She previously served as counsel to the Assistant Attorney General from 2002-2004. Prior to joining the Division, Ms. Overton was in private practice where she worked on several high-profile matters, including the Sirius/XM satellite radio mergers and Proctor & Gamble's acquisition of the Gillette Company.

Footnotes

1 Currently, DOJ is challenging the proposed H&R Block/Tax Act and Verifone/Hypercom transactions. See United States v. H&R Block, Inc. et al. (D.D.C. 2011) (No. 1-11-cv-00948); United States v. Verifone Systems Inc., et al. (D.D.C. 2011) (No. 1:11-cv-00887). Also, the parties in API, Inc./Kronos, Blue Cross Blue Shield/Physician Health Plan of Mid-Michigan, and NASDAQ/NYSE mergers abandoned their proposed mergers because of the threat of a Division challenge.
2 The Division is also currently litigating anti-competition suits against Blue Cross Blue Shield regarding their Most Favored Nation Clauses and against American Express because of its merchant fees. See United States, et. al. v. Blue Cross Blue Shield Michigan, (D. Mich. 2010) (No. 2:10-cv-15155-DPH-MKM); United States, et. al. v. American Express Company, et al., (No. 1:10-cv-04496).
3The revised Horizontal Merger Guidelines were issued on August 19, 2010 and are available at http://www.justice.gov/atr/public/guidelines/hmg-2010.html
4 The updated Policy Guide to Merger Remedies was issued on June 17, 2011 and is available at http://www.justice.gov/atr/public/guidelines/272350.pdf.

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