Today the United States Senate confirmed William J. Baer to
serve as Assistant Attorney General for the U.S. Department of
Justice Antitrust Division. He should be sworn in shortly.
Baer is a respected private practitioner and former Federal
Trade Commission official. Clients should expect Baer to be
thoughtful and effective as the United States' top antitrust
official, but to continue the far-reaching enforcement program of
the Obama Administration.
Baer, until this week head of the antitrust practice group of
Arnold & Porter LLP, is regularly listed among Washington's
top competition lawyers. One of his top victories was against
his new employer, successfully defending General Electric against
DOJ charges that it conspired with South Africa's DeBeers
Consolidated Mines to fix prices for industrial diamonds. He
twice has worked at the FTC, including four years as the
agency's Director of the Bureau of Competition in the late
1990s. At the FTC he helped institute a more aggressive
enforcement approach by bringing several major lawsuits, including
the FTC challenge of Staples' acquisition of Office Depot and
exclusionary conduct cases against Toys R Us and Intel. In a
number of merger reviews, he took the then-unprecedented step of
requiring companies to make divestitures up front to win approval
for some mergers.
Baer's confirmation comes nearly a year after his nomination
by President Barack Obama in February 2012. The division has
been without a confirmed Assistant Attorney General for Antitrust
since Christine Varney stepped down in August 2011. Since
then that position has been filled by three interim chiefs –
Sharis Pozen, Joseph Wayland, and Renata Hesse.
Baer is expected to continue the current policies of the Antitrust
Division. The current antitrust officials at DOJ and the FTC
too have pursued more intense investigations and novel theories
than their recent predecessors. At his Senate confirmation
hearing in July, Baer told lawmakers that he supported reinstating
a ban on resale price maintenance and would welcome action by
Congress to repeal the Supreme Court's 2007 Leegin
decision, which replaced per se illegality for minimum resale price
maintenance with the rule of reason. In Baer's view,
Leegin creates confusion where there once was
"well-settled law," and it conflicts with many state laws
that continue to ban resale price maintenance. During his
hearing, Baer also noted that sound economic analysis is
fundamental to good antitrust enforcement, and he vowed to be
mindful of the risks posed by over-enforcement. Baer also
spoke of the importance of cross-border cooperation for
multi-jurisdictional mergers in order to avoid inconsistent
outcomes brought about by multiple reviewing agencies.
Baer's nomination was supported by a long list of former
assistant attorneys general from both political parties. The
Senate Judiciary Committee approved Baer's nomination in
September by a 12 to 5 vote. Today he was confirmed by a
Senate vote of 64-26.
Attorney General Eric Holder issued a press release on the
confirmation: "Bill is a highly-skilled and
well-respected antitrust lawyer who understands the importance of
promoting competition in order for consumers to reap the benefits
of lower prices and better quality products and services,"
said Attorney General Holder. "I have no doubt that he
will lead the Antitrust Division effectively in its vigorous
enforcement of the antitrust laws."
Read the press release from Attorney General Holder: http://www.justice.gov/opa/pr/2012/December/12-ag-1550.html
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