Change at DOJ’s Top Seen Having Few M&A Review Implications
The departure of Attorney General Eric Holder likely will not have major implications for the big communications mergers and acquisitions before regulators -- AT&T/DirecTV or Comcast/Time Warner Cable -- nor on M&A that could be in the works, industry lawyers told us. Holder said Thursday he will leave after a successor is in place. He is one the last top administration officials left from the beginning of the Obama administration in 2009.
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Several of the lawyers said that whenever there is a change in the top of an agency like DOJ, it makes sense to look for change. “Every leader is different [in] his or her own perspective and biases,” said a former FCC legal advisor who now represents wireless clients. “If nothing else, this change will likely delay the process for those transactions already on file and pending."
There are “too many imponderables” to make predictions, said Andrew Zimbalist, professor of economics at Smith College. A change of leadership could bring about a change of direction, said John Bergmayer, senior staff attorney at Public Knowledge. “But the specific transactions I've been working on are already in process and unlikely to be affected.”
Industry officials noted that M&A review is done a whole step down from Holder’s office, by the Antitrust Division. “While in theory the AG can veto the Antitrust Division’s recommendations, that hasn’t happened in practice in a big deal since [President Richard] Nixon overruled the assistant AG on an ITT merger,” noted Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman. That turned out to be “a big scandal,” he said. “My understanding from the outside had been that the Antitrust Division is pretty sharp and self-sufficient,” said Free Press Policy Director Matt Wood.
"I doubt this changes anything on the mergers,” said Paul Gallant, analyst at Guggenheim Partners. “The Antitrust Division makes those calls and I don’t expect a new DOJ chief to change that.”
The key official is antitrust chief William Baer, said Berin Szoka, president of TechFreedom. “Unless Holder was steering Baer in a particular direction, or unless a new AG is confirmed quickly and starts pressuring Baer to do something, which seems unlikely, I don’t see Holder’s resignation making a difference.” The new attorney general, or acting AG, “will give a lot of deference to the Antitrust Division,” agreed Jonathan Lee, telecom industry consultant and former DOJ lawyer.