DOJ Antitrust Chief’s Exit Shakes Up Private Litigants, States

The resignation of Justice Department antitrust chief Abigail Slater has left private bar attorneys questioning how federal competition laws will be enforced and which merger deals will be challenged.

Slater announced her exit Thursday after the White House requested her resignation, according to Bloomberg News, and weeks before a major DOJ trial against Live Nation Entertainment Inc. is scheduled to begin.

Slater was a “real deal antitrust enforcer with some serious antitrust chops,” said Dylan Carson, partner with Manatt, Phelps & Phillips LLP in Washington and a former trial attorney at the DOJ’s antitrust division.

“That’s exactly the kind of person who you want to be a public servant leading such an important agency,” he said.

Who leads the DOJ’s antitrust division is of particular importance to the plaintiffs’ bar, which routinely files follow-on suits after agency actions in both conduct cases and merger transactions. Plaintiffs, including competitors and consumers, can use the DOJ’s allegations as a blueprint for their own lawsuits.

The private bar also seeks amicus briefs from the agency in support of their claims, signaling to the courts that a matter is significant.

The news of her departure is “disappointing,” Robin Crauthers, partner with McCarter & English LLP and a former attorney at the DOJ’s antitrust division, said in an email. “Gail is an excellent antitrust lawyer with a long history of thought leadership, participation in the antitrust bar, and enforcement.”

Not only will Slater’s exit have implications for the private antitrust bar, it will also affect state enforcers because of their close working relationships with the federal government, said Gwendolyn J. Lindsay Cooley, a former Wisconsin assistant attorney general.

Cooley said she hopes the Trump administration’s pick to replace Slater has “deep knowledge of the antitrust enforcement community, has knowledge of the antitrust laws, and does have respect for the rule of law.”

Omeed Assefi will serve as acting assistant attorney general for antitrust, a role he’d held before Slater’s confirmation last year, the Justice Department confirmed to Bloomberg News.

‘Opposite of Free Market’

Slater oversaw a division marked by concerns of lobbyist interference and internal disagreements over merger enforcement.

Last month, the agency agreed to allow Compass Inc. to close its acquisition of rival Anywhere Real Estate Inc. despite a recommendation from Slater and DOJ antitrust lawyers for an in-depth review of the deal. A dispute over Hewlett Packard Enterprise Co.’s purchase of Juniper Networks Inc. led DOJ leaders to fire Slater’s two top deputies last year.

Slater’s departure creates uncertainly not only because it’s unclear who will take over the role but because her eventual replacement will also be in charge of politically contentious litigation, said Joshua Davis, an attorney with plaintiff firm Berger Montague who supervises its San Francisco Bay Area office.

“You want a level playing field,” he said. “What you don’t want is somebody who is going to take a different attitude toward a merger based on who they donate money to.”

“That’s the exact opposite of a free market,” Davis added. “When you corrupt free competition, what happens is you get less goods, the quality of products and services go down, prices go up. Things get more expensive in the supermarket.”

The DOJ didn’t immediately respond to a request for comment.

If the government doesn’t enforce competition laws effectively, there’s often a decrease in private enforcement because plaintiffs aren’t getting access to the information and public actions that they need to follow on, Davis said.

“Let’s say there was a price-fixing scheme that is discovered,” he said. “The government really relies on private enforcers to get the money back or some of it to the people who paid too much or too little. When the government doesn’t do that, the private bar never finds out about it.”