United States: Trump's Pick For Department Of Justice Antitrust Division Chief

Last month we discussed Supreme Court Justice Neil Gorsuch's confirmation hearings. Specifically, we noted the Senate Judiciary Committee's failure to nail Gorsuch down on key antitrust issues, including issues he handled as an experienced antitrust lawyer and decided as a judge on the U.S. Court of Appeals for the Tenth Circuit, which we also wrote about. At one point, Gorsuch invoked the so-called "Ginsberg Rule" and simply declined to answer Sen. Amy Klobuchar's question regarding, not a pending or prior case, but the Department of Justice's 2008 report on monopolization, responding, "Oh, senator, I—there's no way you're [going to] get me to." Klobuchar quickly changed the subject. Despite the senators' reluctance to fulfill their "advise and consent" obligations under the Constitution by pressing Gorsuch on contemporary antitrust issues, the Judiciary Committee voted to send Gorsuch to the full Senate on April 3. Less than a week later, on April 7, the Senate confirmed him by a 54-45 vote, cementing Gorsuch's place in history as the 113th justice of the Supreme Court.

A key player in shepherding Gorsuch through the confirmation process was Makan Delrahim, whom President Donald J. Trump nominated on March 27 to head the Department of Justice's Antitrust Division. Since January, Delrahim has served the administration as deputy assistant and deputy counsel to the president, advising the Trump administration on the selection of a replacement for former Supreme Court Justice Antonin Scalia. Delrahim had reportedly taken on the role of "quarterback," handling the administration's Supreme Court strategy and acting as a liaison between the White House and the Senate. Delrahim attended the Senate Judiciary Committee hearings with Gorsuch.

As a nominee to a key post in the Department of Justice, Delrahim will also need to be confirmed by the Senate before he takes office. Given the antitrust division's important role in prosecuting and regulating competition, the Senate Judiciary Committee (who will be responsible for Delrahim's hearing) will likely push Delrahim to take a position on antitrust issues, unlike the Supreme Court justice he helped to confirm. As a nominee to the executive branch (not the judiciary), hopefully, he will not invoke the troublesome (and ill-founded) "Ginsberg Rule" and instead answer the antitrust questions that his charge Justice Gorsuch would not. Two aspects of Delrahim's career will play a large role in his confirmation: his government experience, including a stint at the Department of Justice during the George W. Bush administration and his extensive lobbying work for some corporations that are currently engaged in litigation with the Department of Justice.

Delrahim's Government Experience

In 1994, Delrahim joined the Office of the U.S. Trade Representative as a deputy director for intellectual property rights, where he was responsible for negotiating foreign trade deals involving intellectual property issues. After a short hiatus as an associate at Patton Boggs, Delrahim transitioned to the Senate Judiciary Committee from 1998 to 2003, working closely with Committee Chairman Orrin G. Hatch, where he was eventually elevated to staff director and chief counsel (perhaps the rational for the White House's decision to tap him for the Supreme Court selection process). In 2003, he accepted a position with the George W. Bush administration as a deputy assistant attorney general in the Department of Justice's Antitrust Division where he worked on appellate, international and policy matters. He also served on the Intellectual Property Task Force under former Attorney General John Ashcroft, which was created to assess the DOJ's approach to intellectual property issues and to make recommendations on how to improve the agency's efforts.

While working with the federal government, Delrahim developed considerable expertise in intellectual property law and its relationship to the Sherman Antitrust Act. For example, while working at the Department of Justice, he made a speech in Shanghai in 2004 titled, "Contemporary Issues at the Intersection of Intellectual Property and Antitrust," and at the 2004 American Bar Association Antitrust Spring Meeting he spoke at a seminar called, "US and EU Approaches to the Antitrust Analysis of Intellectual Property Licensing: Observation from the Enforcement Perspective." Then-acting Antitrust Division Chief R. Hewitt Pate once referred to Delrahim as a "patent lawyer."

Delrahim's Private Practice Experience

In 2005, after leaving the Bush ­administration's Department of Justice, Delrahim returned to private practice at Brownstein, Hyatt, Farber and Schreck. There, he lobbied on behalf of high-profile clients such as Google in its now consummated acquisition of Doubleclick, an online advertising company that was formerly owned by private equity firms. Also on his resume is the proposed $48 billion merger of Anthem Corp. and rival health care company Cigna Corp. (the second and third largest medical health insurance carriers). Delrahim was responsible for lobbying the Senate and House of Representatives on antitrust issues germane to the proposal. That deal was recently blocked on appeal to the U.S. Court of Appeals for the D.C. Circuit which affirmed the decision of Judge Amy Berman Jackson of the District Court for the District of Columbia, that, "the proposed combination is likely to have a substantial effect on competition in what is already a highly concentrated market." Other Delrahim clients have reportedly included AMC Entertainment in its merger with Loews Cineplex Entertainment, T-Mobile in its merger with MetroPCS Communications, US Airways in its failed merger with Delta Airlines, and Comcast in its merger with NBC Universal, as well as other corporate clients such as Microsoft, Oracle, Apple, Qualcomm, Pfizer, Neiman Marcus, Merck and Johnson & Johnson.

Delrahim's work for large corporate clients presents a challenge as he may eventually represent, if confirmed, the government in cases brought against those same clients, or, in the case of the Anthem/Cigna merger, could represent the government concerning a merger on which he formerly worked. Sen. Klobuchar, ranking member of the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights, will surely question Delrahim about how he will handle such conflicts, including whether he will recuse himself from matters related to his lobbying work. Delrahim, for his part, has reportedly pledged to recuse himself from participating in the Anthem/Cigna matter, as he should.

As an experienced antitrust policymaker, regulator, litigator, and lobbyist, Delrahim, unlike some former division heads, is sure to bring a unique viewpoint to the antitrust division if confirmed. Moving over from the Trump White House, he certainly does not hesitate to speak his mind and share his views on antitrust issues. In October 2016, Trump, as one of his many populist campaign promises, publicly opposed the tie-up of AT&T and Time Warner, explaining, "as an example of the power structure I'm fighting, AT&T is buying Time Warner and thus CNN, a deal we will not approve in my administration because it's too much concentration of power in the hands of too few." Delrahim, on the other hand, commented in October 2016, before he joined the Trump transition team administration or the Trump administration, "I don't see [the AT&T/Time Warner deal] as a major antitrust problem," noting that the combination would be "more of what we call a vertical merger, content with distribution, rather than two competitors merging" (AT&T is a telecommunications company while Time Warner is a media and entertainment company). He continued: "Just the sheer size of the deal and the fact that it's media, I think it will get a lot of attention." The Senate Judiciary Committee should question Delrahim about this seeming inconsistency with the views of his nominating president and how independent he will be as antitrust division head.

Delrahim would certainly bring a plethora of real-world antitrust experience to the division. As Seth Bloom, former general counsel of the Senate Antitrust Subcommittee put it, "I know Makan Delrahim to be a smart, energetic ... expert in antitrust law. He is certainly no pushover." But the Senate is unlikely to give Delrahim a pass on antitrust issues like it did in Justice Gorsuch's case. That is especially true given the number of large mergers currently slated for review by the Department of Justice, such as Bayer AG's $66 million buyout of Monsanto and a $130 merger between DuPont and Dow Chemical. Delrahim may decline to comment specifically on mergers currently under DOJ review that he would handle if confirmed, but the committee should thoroughly test his antitrust acumen and question him on his antitrust views in general to reveal his positon on pressing contemporary antitrust issues. Delrahim's Senate hearing was initially scheduled for Wednesday, April 26, but, according to Judiciary Committee Chairman Chuck Grassley, the hearing was postponed because some of Delrahim's paperwork was incomplete. His hearing will likely be rescheduled in short order, which we will report on next month. Stay tuned.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.