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Obama hunts for new DOJ antitrust chief

by William McConnell in Washington | Published August 30, 2011 at 6:07 PM

The Obama administration is considering several individuals to replace Christine Varney as head of the Department of Justice's antitrust division.

Varney resigned as assistant attorney general on Aug. 5 to join New York law firm Cravath, Swaine & Moore LLP.

Varney's chief of staff, Sharis Pozen, has been leading the division on an acting basis, but Pozen has told the White House she will not seek to be named to the job in a permanent capacity, which requires Senate confirmation. She has offered to stay in the post in an acting position until a replacement is confirmed.

Leading contenders for the job, according to antitrust sources, are Seth Bloom, longtime aide to retiring Senate Antitrust Subcommittee Chairman Herb Kohl, D-Wis.; DOJ official Leslie Overton, who was named special assistant to Pozen in July; Richard Parker, chairman of the antitrust and competition practice at O'Melveny & Myers LLP and former director of the Federal Trade Commission's competition bureau; and William Baer, head of the antitrust group at Arnold & Porter LLP and also a former director of the FTC's competition bureau.

Antitrust sources would not handicap the outcome of the search but noted that President Obama most likely must have Varney's replacement confirmed by November or it will be difficult to find a candidate willing to take the position, given that the president's term expires at the end of 2012 and anyone who assumes the post will want to be assured of holding the job long enough to accomplish projects of significance.

Forgoing the confirmation progress frees Pozen to focus on several controversial mergers and competition proceedings already before the DOJ with less concern for the political fallout that is likely to occur. Among the mergers: Deutsche Börse AG's $9.7 billion merger with NYSE Euronext; AT&T Inc.'s $39 billion bid to acquire T-Mobile USA from Deutsche Telekom AG; Google Inc.'s $12.5 billion purchase of Motorola Mobility Holdings Inc. and two major patent sales in the Internet and cellphone sectors -- the $4.5 billion sale of Nortel Networks Corp.'s patent portfolio to a consortium of companies and a $450 million sale of 882 Novell Inc. patents to another consortium.

Winning confirmation for Varney's successor will not be easy because the already partisan atmosphere on Capitol Hill will only get worse as the election season heats up. The chance that no one could win confirmation creates the possibility that Pozen will have the assistant attorney general's spot at least until the end of Obama's term.

Bloom is given the best chance of winning a quick confirmation because of his congressional connections. Currently the Antitrust Subcommittee's general counsel, Bloom has served the panel for 11 years.

He is credited with planning hearings to investigate competition in several industries, including telecommunications and media, healthcare, aviation, energy and agriculture. He has helped Kohl draft key antitrust reform bills, including the Discount Pricing Consumer Protection Act, the Preserve Affordable Access to Generic Drugs Act, the Railroad Antitrust Enforcement Act of 2009, and the No Oil Producing and Exporting Cartels Act.

Bloom served as a DOJ trial attorney in the antitrust division of the U.S. Department of Justice, and also had a stint in private practice. He earned his law degree from the University of Pennsylvania.

Overton was named to her current DOJ post on July 25, a couple weeks after Varney announced her plans to leave the agency. When it became known Pozen would not seek the permanent posting, speculation then turned to Overton. Before rejoining the DOJ, Overton was a partner in the Jones Day law firm, where she represented XM Satellite Radio in its 2008 merger with Sirius Satellite Radio and Procter & Gamble Co. in its 2005 purchase of Gillette Co. Before joining Jones Day she served from 2002 to 2004 as counsel to Bush administration DOJ antitrust chiefs Charles James and Hewitt Pate. Overton earned her law degree from the University of Michigan.

Parker returned to O'Melveny & Myers in February 2001 after three years at the FTC, in which he served as director of the competition bureau and as agency senior deputy director. As head of the competition bureau he led the investigations into the mergers of Exxon-Mobil, BP Amoco-Arco, and AOL-Time Warner. As agency deputy director he was co-lead counsel for the FTC's successful bid for a federal court injunction against the merger of Cardinal Health and Bergen Brunswig and the combination of McKesson with AmeriSource Health. After his return to private practice, Parker successfully defended the Arch Coal-Triton Coal merger against an FTC request for a federal court injunction blocking the deal. Parker earned his law degree from UCLA.

Baer, who graduated from Stanford University's law school, led the FTC competition bureau from 1995 to 1999, where he oversaw the commission's successful court challenges to the Staples-Office Depot and drug wholesaler mergers as well as the reviews of Time Warner's acquisition of Turner Broadcasting System and the Ciba-Geigy/Sandoz merger.

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