James F. Rill was a pioneer in the Justice Department’s Antitrust Division, leading the unit as enforcement went international and the trust-busting Sherman Act became one of the United States’ “best-selling exports,” friends and colleagues said Tuesday.
Rill, who served as Assistant Attorney General for the Antitrust Division from 1989 to 1992, was given the Sherman Act Award on Tuesday afternoon, an honor given to those who have “substantial contributions” to protecting American consumers and preserving economic freedom.
Attorney General Eric Holder presented the award to Rill, who hailed the division’s unwavering “non-partisan” stance and its commitment to criminal enforcement.
Holder told the crowd assembled in the Great Hall at Justice Department headquarters in Washington that Rill helped “build the Antitrust Division into the dynamic component it is today.”
“And it’s no exaggeration to say that he, his colleagues and partners they brought to the table from around the world helped to usher in a new era of global antitrust enforcement,” the attorney general said.
Rill’s career was marked by his tenacious enforcement, bringing the largest number of merger challenges in more than a decade, including to major bank and airline transactions. Rill, who is now a partner at Baker Botts LLP, negotiated a first-of-its-kind cooperation agreement between the United States and the European Union in 1991. He also issued the first joint Justice Department-Federal Trade Commission Horizontal Merger guidelines a year later.
In 1997, he was chosen by then-Attorney General Janet Reno and Assistant Attorney General Joel Klein to serve as co-chair of the department’s International Competition Policy Advisory Committee, which authored a report recommending, among other things, a global forum for international agencies to discuss antitrust issues. This suggestion later formed into the International Competition Network, which hosts more than 100 member-nations.
Douglas Melamed, former Acting Assistant Attorney General for the Antitrust Division, said Rill “foresaw this world long before the rest of us,” noting Rill’s focus on increased globalization and its effects on competition and antitrust issues.
Melamed said Rill was the first assistant attorney general to travel to Mexico to visit his counterpart there to discuss antitrust matters. He also took several trips to Japan to during his department tenure, he said.
“The only Japanese word I knew at the time was ‘hai,’ ” Rill said. “I still don’t know that that means.”
On a more serious note, Melamed said Rill is more than his resume — “he is infused with integrity,” he said.
Outgoing acting Assistant Attorney General for the Antitrust Division Sharis Pozen, Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit and former FTC Chairman Timothy Muris were also in attendance Tuesday.
The decision whether to block AT&T’s proposed merger with T-Mobile is apt to be the “legacy” of Assistant Attorney General Christine Varney of the Justice Department’s Antitrust Division, a former DOJ official said Tuesday.
Speaking in a conference call with reporters, Allen Grunes, an attorney in the Antitrust Division from 1995 to 2007, said the verdict on the deal planned between the telecommunications companies will ultimately rest in her hands. The DOJ currently is reviewing the proposed $39 billion merger for antitrust pitfalls.
“She’s the decider,” said Grunes, who is the D.C. Bar Association Antitrust Committee chairman. “She’s pledged vigorous horizontal merger enforcement and this merger is where the rubber will meet the road.”
Varney has overseen high-profile antitrust matters, including the decision to approve the Ticketmaster Entertainment Inc.-Live Nation Inc. and Comcast Corp.-NBC Universal Inc. mergers, since she took the helm of the Antitrust Division in April 2009. In May, the Antitrust Division under Varney also made headlines for its condemnation of the potential H&R Block Inc. acquisition of the TaxACT tax-preparation program and NASDAQ OMX Group Inc.’s planned union with NYSE Euronext.
The DOJ filed a suit to bar H&R Block from getting TaxACT. NASDAQ withdrew its unsolicited offer for NYSE after the Department threatened to go to court to block the proposed deal.
Varney told members of Congress last year that the DOJ is not afraid to file antitrust lawsuits.
“We are committed to going to court to block those mergers that will substantially reduce competition,” Varney said in remarks prepared for a House Judiciary Committee hearing. “The commitment to litigate enhances our ability to negotiate settlements that simultaneously enable any pro-competitive aspects of a deal to go forward yet also prevent harm to consumers.”
Grunes said the AT&T-T-Mobile merger is anticompetitive and the Antitrust Division has shown a willingness to oppose “bad horizontal mergers.”
“I don’t think anyone should bet on DOJ being weak on enforcement,” Grunes said. “The lawyers and economists at DOJ are first rate in my experience.”
Ed Black, president and CEO of the Computer & Communications Industry Association, also said in the conference call that the bar has been raised for the Obama administration after it pledged its dedication to ensuring fair competition in the marketplace.
“I think everybody believed that this administration was committed,” Black said. “They understood well the value of competition and they were committed to vigorous enforcement of the antitrust laws.”
The Antitrust Division Chief of Staff will take on a new post this month, a Justice Department spokeswoman told Main Justice.
Sharis Pozen will become the Antitrust Division Deputy Assistant Attorney General for Civil Matters after Molly Boast steps down from that position Friday, DOJ spokeswoman Gina Talamona said. Boast has served almost two years as a Deputy Assistant Attorney General. She hasn’t reached a decision on her plans for the future, the spokeswoman said.
Assistant Attorney General Christine Varney of the Antitrust Division announced Pozen’s new post at an American Bar Association brown bag lunch this week. Pozen has spent two years as Chief of Staff, and will continue in that role when she assumes her new responsibilities, Varney said.
Before joining the DOJ, Pozen was a partner at Hogan & Hartson LLP (now Hogan Lovells) from 1995 to 2009, working in the law firm’s antitrust, competition and consumer-protection group. She also held various posts at the Federal Trade Commission from 1990 to 1995, including attorney adviser to Varney, who was a commissioner from 1994 to 1997.
She received her undergraduate degree from Connecticut College in 1986 and her law degree from Washington University in 1989.
Varney also noted other recent Antitrust Division staff changes during the brown bag lunch.
In December, Patricia Brink became the Director of Civil Enforcement, which is a new position. Brink, who has spent more than two decades at the DOJ, previously served as the Deputy Director in the Antitrust Division’s Office of Operations.
John F. Terzaken III started as the Director of Criminal Enforcement in December 2010. He replaced Marc Siegel, who is now Chief Counsel for Criminal Litigation. Terzaken, who has spent eight years at the DOJ, previously was the Assistant Chief for the Antitrust Division’s National Criminal Enforcement Section.
Deirdre McEvoy became the Chief of the New York field office in December. She replaced Ralph Giordano, who became a Senior Counsel for Criminal Enforcement. McEvoy, a 10-year veteran of the DOJ, previously served as an Assistant U.S. Attorney in the Southern District of New York.
Lawyers could create “a big problem” for their clients if they hold back information from antitrust enforcers examining potential mergers and acquisitions, Assistant Attorney General Christine Varney warned Wednesday.
Speaking at an American Bar Association brown bag lunch in Washington at the law offices of Bingham McCutchen LLP, Varney said antitrust enforcers want to see all e-mails, memos and letters related to any side agreements that companies anticipating a merger might have reached with each other.
Varney indicated her office isn’t going to be tougher on a company simply because it has enough information to fully understand a proposed merger agreement. “We are not unduly influenced by understanding the merger agreement in its totality,” she said. She added that seeing any side documents helps Antitrust Division attorneys see the pressures a company is facing.
“Let me be really clear, antitrust side agreements are part of the … filings,” Varney said. “And you execute them and you don’t give it to us, do it at your own peril because we will likely find out about it.”
Deputy Assistant Attorneys General Katherine Forrest and Joseph Wayland, in addition to Varney’s Chief of Staff and Counsel, Sharis Pozen, told the ABA lawyers about other blips on the division’s radar.
Forrest said the division is keeping an eye out for violations of Section 8 of the Clayton Antitrust Act, which generally prohibits an individual from being an officer or a director at two or more competing companies. She said the prohibition on more than one directorship is “alive and well.”
Section 8 is “something that I think people often lose sight of,” Forrest said.
Wayland said the division also is looking out for non-solicitation agreements, which prohibit companies from poaching employees from other businesses. He said the DOJ has been especially aggressive on non-solicitation agreements in the technology industry.
In September 2010, the DOJ reached a major settlement with Adobe Systems Inc., Apple Inc., Google Inc., Intel Corp., Intuit Inc. and Pixar that ended non-solicitation agreements for employees at those companies. The DOJ claimed the technology companies had agreed not to cold call each other’s employees, limiting competition among those businesses for high tech workers.
“We are vigilant,” Wayland said.
Pozen said the division also is monitoring the health care industry for potential competition issues. She noted that the division filed a lawsuit against Blue Cross Blue Shield of Michigan last October. The DOJ claimed that deals the company made with local hospitals essentially kept other health insurance carriers from entering the market.
“We’re talking to all of the states where there are dominant providers to find out what contracting practices are being engaged in by dominant firms that are leading to harm to competition,” Pozen said.
Google Inc. will bring on the House Judiciary Committee antitrust counsel for the Republicans next month amid government scrutiny of the Internet giant’s proposed merger with a travel data firm.
Stewart Jeffries will join Google as Competition Policy Counsel on Feb. 7, a spokesman for the company told Main Justice on Friday. Jeffries has been the House Judiciary Committee antitrust counsel for the Republicans since 2007. He previously served as the House Judiciary constitution subcommittee counsel from 2004 to 2006, and as an associate at Skadden, Arps, Slate, Meagher & Flom LLP from 2000 to 2003.
“Stewart brings deep experience on competition issues and has respect from both sides of the political aisle,” said Google spokesman Adam Kovacevich. “We’re excited for him to join us.”
A House Judiciary Committee spokeswoman declined to comment to Main Justice.
The Justice Department Antitrust Division is preparing a possible court case to stop Google’s $700 million acquisition of ITA Software Inc., which creates most of the software for online flight ticket sales, The Washington Post reported earlier this month. But the DOJ has not made a decision on whether to block the merger.
The House Judiciary Committee, under Democratic control last year, had its eye on the proposed merger. The panel held a hearing in September on competition in the digital marketplace, examining Google and its proposed merger with ITA. Witnesses at the hearing expressed concern that the Internet giant was stifling competition from smaller companies.
Rep. Lamar Smith (R-Texas), who is now the panel’s chairman, pushed back against the critics at the time.
“Just because a company is big does not mean it is bad,” Smith said, according to The Hill. “Just because competitors complain about a practice does not mean it is anti-competitive.”
Aruna Viswanatha contributed reporting.
Assistant Attorney General Christine Varney on Tuesday defended the Justice Department’s decision to back the $30-billion merger of NBC Universal Inc. and Comcast Corp., saying the conditions for the proposed union “fully remedied” DOJ concerns about unfair competition.
Varney said in a conference call with reporters that the settlement reached by the DOJ and the Federal Communications Commission with Comcast and NBC Universal would protect competition in the media industry, especially nascent competition from online video distributors. Some commentators reacted with skepticism to the deal.
But Varney noted that a provision in the settlement would stymie Comcast’s power to undercut Hulu, which streams NBC shows for free online.
The settlement would require Comcast to give up its management rights to the online video provider. But the agreement would not require Comcast to give up NBC Universal’s 30 percent interest in Hulu.
“We had competitive concerns about this transaction. We were willing to go to court to block the transaction,” Varney said. “However, when parties come forth and say, ‘Look we are willing to undertake remedies that address your concerns,’ I think we achieve a better result for consumers and a better result for the marketplace if those conditions truly remedy our concerns.”
The U.S. District Court in D.C. must still approve the settlement before it can go into effect. The court can rule on the agreement in March, after a 60-day public comment period has ended.
A former government lawyer who served 59 years in the Antitrust Division was honored at Justice Department headquarters in Washington on Wednesday with accolades, stories and a toy bulldog.
Onetime colleagues of former Senior Trial Attorney Bernard Hollander, 94, described him as a tenacious, dedicated lawyer who was the driving force behind many major antitrust cases from 1949 and 2008, when he retired.
A picture of Hollander can be found in an unabridged dictionary under bulldog, former DOJ official Gerald A. Connell said, drawing laughs from more than 50 of the longtime lawyer’s friends, former colleagues and family members. Connell recalled that he once advised a co-worker to chop off his leg if “if Bernie ever gets his jaws around your ankle.”
“Bernie did what Bernie wanted to do,” Connell said. “Bernie is as dogged and relentless and persistent a person as I’ve ever known. And I think that is one of his shining attributes.”
Hollander handled several groundbreaking cases, including U.S. v. RCA, in which the Supreme Court ruled in 1959 that the DOJ could challenge mergers already endorsed by the Federal Communications Commission. He also received several honors, most notably the first Attorney General’s Award for Lifetime or Career Achievement.
Assistant Attorney General Christine Varney of the Antitrust Division said Hollander is “an extraordinary man” with an “extraordinary career.” Varney said she has become a Hollander fan since she being confirmed to her DOJ post in 2009.
“While I’m late to the school of Bernie admirers, I am now first in class,” Varney said.
John M. Nannes, a former Deputy Assistant Attorney General in the Antitrust Division, said Hollander was “the mentor-in-chief to generations of Antitrust lawyers.”
“He taught them and us an important lesson: the law applied to everyone,” said Nannes, now a partner at the law firm of Skadden, Arps, Slate, Meagher & Flom LLP in D.C. “The rule of law — not politics or power — was the guiding standard.”
Attorney General Eric Holder on Wednesday cautioned farmers and producers at a workshop in D.C. that Justice Department antitrust enforcement in the agriculture industry won’t fix all their troubles.
Holder said the DOJ has heard the concerns of producers and farmers at several previous workshops about competition in the agriculture industry. The Attorney General said he and his colleagues in the Barack Obama administration are working to bring “market transparency, market access and market fairness” to the industry.
“Of course, we know that antitrust enforcement actions will not solve every problem. We know that,” Holder said. “But because of the insights that you have provided … I believe that we will be better prepared to take the steps necessary to ensure a fair and competitive marketplace both for producers as well as consumers.”
The Antitrust Division under Assistant Attorney General Christine Varney has been active in taking on antitrust concerns in the agriculture industry.
Varney has been a constant presence at agriculture workshops across the country about competition issues. And her division has acted on antitrust concerns, taking on companies including dairy giant Dean Foods. The DOJ sued the company in January to undo its 2009 purchase of some milk processing plants in Wisconsin.
The DOJ and Agriculture Department, which hosted the workshop Wednesday, also created a task force in June to review ways to encourage competition in the agriculture industry. Holder said the group created a “simple and accessible online submission process” for members of the agriculture community to submit complaints and concerns about industry and market issues.
The Attorney General said farmers and producers should continue to share their comments with the DOJ.
“I also want to be clear about something: the critical channel of communication that we have opened this past year … will remain open,” Holder said. “And the Departments of Justice and Agriculture will continue working in close coordination to address your concerns and to ensure fairness and opportunity for America’s farmers, producers and agriculture industry.”
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This story has a correction.
A top aide to Assistant Attorney General for the Antitrust Division Christine Varney said Monday that her office is vigorously pursuing anti-competitive activity in the health insurance industry.
“I would say we have been very active in the health insurance area and the markets looking to see where there is dominance and how that dominance is maintained,” said Sharis Pozen, Varney’s chief of staff, at an American Bar Association health care summit in Arlington, Va.
Pozen touted the division’s lawsuit filed against Blue Cross Blue Shield of Michigan in October. The DOJ claimed that deals the company made with local hospitals essentially keep other health insurance carriers from entering the market.
She said the Antitrust Division isn’t “inventing anything new” with its scrutiny of the deals, known as “most favored nation” clauses. The agreements aren’t necessarily illegal, but Varney has said they are “problematic” when they are employed to thwart competition.
Pozen said the complaint for the case shows that there was “direct evidence of the harm to competition.”
Blue Cross Blue Shield of Michigan has defended its use of the deals. Andrew Hetzel, a vice president for the company, said the DOJ allegation’s are “without merit.”
More broadly, antitrust enforcers including Federal Trade Commissioner Jon Leibowitz have been looking at potential anti-competitive effects of mergers in the health industry spurred by the recent health care law.
Correction: an earlier version of this story misquoted Pozen as saying the DOJ found “direct evidence of theft, harm to competition” in the case involving Blue Cross Blue Shield of Michigan. Pozen said the DOJ found “direct evidence of the harm to competition.”