During the presidential campaign, now-President Obama vowed to “reinvigorate antitrust enforcement.” He sharply criticized the Bush administration as having the “weakest record of antitrust enforcement of any administration in the last half century.” In particular, Obama faulted the Bush administration’s record in merger challenges. He has cited statistics showing that between 2001 and 2006, the antitrust agencies challenged mergers at less than half the rate of challenges during the prior four years under the Clinton administration. Obama thus promised to “step up review of merger activity and take effective action to stop or restructure those mergers that are likely to harm consumer welfare.” Moreover, Obama criticized the Bush Department of Justice (DOJ) for not bringing a single monopolization case in seven years.
Last Thursday, President Obama took the first step in fulfilling his vow; he appointed a Clinton administration antitrust veteran, Christine Varney, to head the DOJ Antitrust Division. From 1994 to 1997, Ms. Varney served as a Commissioner at the Federal Trade Commission (FTC). If her record as an enforcer is any indication, Ms. Varney, if confirmed by the Senate, will likely bring change in both merger and non-merger antitrust enforcement. Specifically, companies may expect the DOJ to take a more aggressive stance in (1) mergers in innovation focused industries, (2) mergers involving vertical integration, and (3) mergers involving privacy issues. In addition, the DOJ may take a harder look at non-merger cases involving vertical restraints.
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