DealLawyers.com Blog

Today, May 10, 2005, R. Hewitt Pate, Assistant Attorney General of the U.S. Department of Justice (AAG), and the chief enforcer of the country’s antitrust laws, resigned after completing a nearly two-year stint as AAG. http://www.usdoj.gov/atr/public/press_releases/2005/208940.htm. Pate will leave his position at the end of June.

Under Pate’s stewardship, the DOJ primarily focused on prosecuting bid rigging and other cartel arrangements under the antitrust laws, and was quite successful in that area. In the area of merger enforcement, though, the record of the DOJ under Pate is decidedly more mixed. Although the DOJ successfully negotiated merger remedies in several high-profile transactions–including First Data / Concord, Nestle/Dreyers, and Connors/BumbleBee–the Division also lost a high-profile merger challenge under Pate’s watch (U.S. v. Oracle Corporation), and suffered another high-profile loss in its challenge to the consolidation of school milk producers in Kentucky and Tennessee (U.S. v. Dairy Farmers of America).

Pate also emphasized the importance of intellectual property. His strong belief in the importance of protecting IP rights (even when directly in conflict with the antitrust laws) was evidenced in several significant amicus appellate briefs (most notably in Trinko v. Verizon) and speeches that he gave during his tenure as AAG. It will be interesting to see whether his successor places such a high premium on IP rights.

Will antitrust enforcement change fundamentally after Pate leaves? Doubtful. During the period before a permanent successor is announced, any interim antitrust chief will likely not take a radically different approach to antitrust enforcement. Any successor likely will come either from the ranks of the current DOJ leadership (the WSJ mentions Makam Delrahim, current one of Pate’s deputies) or someone hand-picked by the President’s circle of advisors. Until the next election, we’re likely to see more of the same from the DOJ.