Intellectual Property Law

Antitrust, Followed by Anti-Anitrust Followed by ?.

By Lee.Gesmer

All of the news articles I’m seeing about how aggressive the newly appointed antitrust enforcers my be puts me in a mind to reminisce.

When I graduated law school in 1979 I went off to what was then called Howrey & Simon, at that time the self-proclaimed antitrust heavyweight of D.C., and maybe the entire country.  We certainly believed this to be true, and maybe it was. Back then there was no American Lawyer, and no one was really keeping score.

At Howrey it was all antitrust all the time.  The firm was involved in massive trials in distant locations - a four month trial in Houston, requiring the rental of suites of condos and an entourage that would challenge a U.S. President and staffed like the U.S. army — was not uncommon; in fact, cases like that were taken for granted.  And, according my “law of antitrust litigation” (which is: all antitrust cases must be tried twice,  < appeal, > appeal), some of these trials were seconds.  The funny thing is, no one seemed to give this a second thought -it was just assumed that this was the normal course of events, and as long as Jimmy Carter was in the White House, all was well for antitrust lawyers.

This changed as quickly as the April weather in New England when Ronald Reagan took office - in fact, hiring at the DoJ Antitrust Division pretty much froze in November 1980 (I know, because I was interviewing there)  If memory serves me right, many lawyers who were hired by the Antitrust Division during the interregnum between election day and inauguration day were laid off shortly after Reagan took office.  Fortunately for me, I was headed back to Boston by then, so I wasn’t one of them.

A long winter, an era of “anti antitrust,” had began.  Government prosecutions — the lifeblood of many private actions — were shut down and new case filings became scarce.  A firm like Howrey wasn’t able to ride the coattales of a govenment criminal action, or defend against either government cases or civil spin offs, and the firm entered a period when it was “reinvent or die.”  Howrey did reinvent itself, and thrives to this day, but a DarK Age of Antitrust had begun, and it was to last for twelve long years, while Reagan, and then George Bush, were in office.

This was a truly terrible time for  U.S. antitrust hawks, but like the desert creatures that are able to hibernate for years waiting for rain, rain eventually did come, and the believers in aggresive antitrust enforcement rose to meet ia new spring.  Or so they hoped.  The Clinton administration did revive antitrust (to Microsoft’s dismay, to mention one victim), but somehow it never got fully back on its feet in the eight years the democrats gave it. It takes a long time to recover from a 12 year dry spell, and eight years just wasn’t long enough.  And, truth be told, Bill Clinton wasn’t as much of an antitrust hawk as some might have expected.  Yes, there was some action, but nothing like the ’70s.

George Bush’s eight years in office put a quick stop to whatever momentum antitrust enforcement had picked up during the Clinton years.  Price fixing prosecutions galore, sure, but not very much of the real thing: Section 2 cases, merger challenges, aggressive criminal enforcement, novel legal and economic theories that lawyers and economists could really sink their teeth into and spend a career debating

So, now that Barak Obama is in office, what will the future hold?  Once never knows, and although history may rhyme to som extent, it never repeats.  Google may prove to be a poor substitute for AT&T.  However, you can be sure that a new generation of anitrust lawyers has a careful eye on the Obama administraiton, waiting for a sign - a sign that their time has come.  Again.

Full post as published by Mass Law Blog on May 18, 2009 (boomark / email).