Barnett (Yale, Harvard Law) resigned in November, after leading the Antitrust Division for more than three years, in both acting and Senate-confirmed capacities. He began his career in private practice at Covington in 1990, where he remained until his 2004 appointment. At Covington, he’ll lead firm’s global antitrust and competition law practice and will also work closely on criminal antitrust enforcement and investigative matters.
In an interview with Legal Times, Barnett said Covington’s strong international platform drew him back to the firm. “Competition is very much an international enterprise,” Barnett says. “As a result, dealing with competition has never been more important or more challenging for companies.”
In a statement, Timothy Hester, chair of Covington’s management committee, called Barnett "among the most able, experienced, and versatile antitrust practitioners on the global scene."
"We are extremely pleased that he is rejoining Covington, where he distinguished himself early on for his abilities as a top-notch antitrust counselor and litigator and as a superb colleague,” Hester said.
Merger numbers were low during Barnett’s tenure at the Justice Department -- the division filed 34 cases -- but Antitrust’s cartel enforcement was robust, netting $1.8 billion in criminal fines against 50 corporations and 91 individuals. A large chunk of those fines came from four major airlines, which handed over $504 million to settle air cargo price-fixing charges over the summer. Barnett's division was also active in the Supreme Court. Antitrust filed 14 amicus briefs with the Supreme Court on competition related issues, and the Court consistently adopted the division's analysis.
Barnett oversaw several large-scale industry mergers, including Delta-Northwest and XM-Sirius. Days before he announced his resignation, Google Inc. backed out of an ad-sharing deal with Yahoo! Inc., fearing a protracted legal battle. The Justice Department threatened to file a lawsuit to block the deal.
When asked about the possible direction of the division under the new administration, Barnett says he hopes it will “continue on the basic track that it’s been on for, really, the last couple of decades. Most of the people there are career folks who are very dedicated individuals and the vast majority of issues are decided on a consensus basis.”
At his Jan. 15 confirmation hearings, Attorney General nominee Eric Holder Jr. spoke generally of the need for “smart antitrust enforcement to punish unlawful conduct that hurts markets, excludes competition, and harms consumer welfare.”
President Obama has nominated Hogan & Hartson’s Christine Varney, a former FTC commissioner, to head the Antitrust Division. If confirmed, Holder and Varney will confront an economic crisis that could force them recalibrate their thinking on merger enforcement. Barnett says the economy could play out in a couple ways.
“It can affect the number of transactions, bringing them way, way down,” he says. It can also dramatically affect the analysis of potential mergers, though Barnett said it’s difficult to generalize. “It may make some transactions easier to or it may make them harder. It just depends.”
His advice for Varney, if she’s confirmed: “Listen to the very dedicated and capable staff in the division, roll up your sleeves and dive into the facts and the law, and do your best to make the right calls. I think that’s all we can ask for.”
Barnett resumes work at Covington next week. When asked whether he’ll get his old office, Barnett says, “We’ll have to figure that all out.”