Antitrust lawyers say they expect more of the same from the next head of the U.S. Justice Department's Antitrust Division, as an election year overshadows the selection of an official with enormous influence over business deals.
The antitrust job is scheduled to open up Aug. 5, when Assistant Attorney General Christine Varney plans to step down and become a partner at Cravath, Swaine & Moore. Since her appointment in April 2009, Varney has developed a reputation for avoiding major battles over proposed business deals — allowing through mergers such as the one between concert giants Live Nation and Ticketmaster, but with some concessions to aid competition.
Mayer Brown partner Richard Steuer said he expects the White House to find someone who won’t be viewed as a “job-killer” or “innovation-killer,” because unemployment remains at historically high levels.
“Politically, I think that’s probably front and center, to have somebody who won’t be viewed as just a business-basher,” Steuer said. Under Varney, he added, “There’s a real openness to new and creative ways to get deals done.”
Bert Foer, president of the nonprofit American Antitrust Institute, said he would like to see President Barack Obama signal his support for a more aggressive antitrust approach. But he said that would require a significant shift from the administration’s current direction.
“If he replaces Christine with someone like her in view, probably somebody out of a big law firm with a lot of large clients, you’ll probably get more of the same, which is to say a moderate approach to antitrust,” Foer said.
Antitrust lawyers in private practice said in interviews that they see two likely frontrunners for the job as the White House ramps up its search: William Baer, head of the antitrust practice at Arnold & Porter in Washington and a former director of the Federal Trade Commission’s competition bureau, and Sharis Pozen, Varney’s principal deputy at DOJ and a former partner at what is now Hogan Lovells.
But the nomination process could take time. Other names that lawyers are mentioning include Harvard Law School Professor Einer Elhauge, Wilmer Cutler Pickering Hale and Dorr partner William Kolasky and former Simpson Thacher & Bartlett partner Joseph Wayland, who joined Varney’s staff last year as a deputy assistant attorney general.
Attorney General Eric Holder Jr. has not said who will serve as acting head of the Antitrust Division once Varney leaves. That person could lead the office for several months, given the pace of the Senate confirmation process.
Spokespeople at the Justice Department and the White House declined to comment on the search for Varney’s successor. The candidates being mentioned all either declined to comment or did not respond to requests for comment.
Foer said he hopes the White House names a nominee soon, given the high-profile cases facing the office. The Antitrust Division is currently reviewing AT&T Inc.’s proposed $39 billion deal with T-Mobile USA, among others.
“You don’t want this job to be handled on an interim basis,” Foer said. “It seems you really want the White House to get someone into position and to know what the administration is thinking.”