i saw this in the washington post:
washingtonpost.com
Justice Dept. Scales A Mountain of Work
By David Segal
Washington Post Staff Writer
Friday, May 29, 1998; Page F01
John Nannes had figured that ditching the corporate-law grind for a job with the Justice Department's antitrust division would mean more flexibility - perhaps some weekends free and dinner at home once in a while.
That hasn't happened.
Not since fighting a "two-front war" against AT&T Corp. and International Business Machines Corp. in the 1970s and early 1980s have the nation's antitrust enforcers been so swamped. Justice's work pace is humming at historic levels, with hundreds of investigations plus a huge fight against Microsoft Corp., and merger-blocking litigation pending against Primestar Inc. and Bethesda's Lockheed Martin Corp. And other big cases are also keeping lawyers busy into the wee hours.
"I expected at least more predictability in the government hours and a better ability to manage my own schedule," said Nannes, formerly a partner at the Washington firm Skadden, Arps, Slate, Meagher & Flom. "I found out that I was completely wrong on both counts."
Meanwhile, over at the Federal Trade Commission, the other half of the government's trust-busting team, life is just as hectic. A trial is slated for June in an antitrust case against the nation's four largest drug wholesalers. And in coming weeks, the agency is likely to file suit against Intel Corp., charging the computer chip giant with using its market dominance to bully corporate customers.
The agencies are betting that such high-profile actions will deter corporations from pushing the legal envelope, and several lawyers say that has been precisely the effect. But some mergers and acquisitions specialists are whispering that this could be an ideal moment to slip through deals that might otherwise ring alarm bells. Antitrust lawyers are publicly wondering whether Justice is, by necessity, letting its standards slide.
"You have to assume that they're adjusting the bar in terms of what it is that they'll take a close look at," said Phil Verveer, a former antitrust division staff lawyer now in private practice. "When you have the number of matters that they now have in court and in front of them, it's going to be a big, big struggle to meet all of their obligations."
Complicating matters as Deputy Attorney General Joel Klein and FTC Chairman Robert Pitofsky sue and probe their way into the record books is the fact that they are doing so with relatively bare-bones staffs. There are 343 lawyers in the antitrust division these days, down from 456 in 1980, a key year in the two-war era.
"I'm sure the workload per lawyers is as great as it's ever been," said Robert Litan, a former Justice staffer.
The crunch is putting officials at both agencies in a delicate spot. At the same time they're pleading to Congress for reinforcements, they don't want to signal that their regulatory cops are too preoccupied to stop all the crimes.
"This is what we do for a living, and nobody by virtue of all this activity is going to get a free pass," said a Justice official, who did not want to be identified. Then again, the official added, "we'd benefit from additional resources and we think we should get them."
Already, there are signs the staff is struggling with the welter of work, as it gets up to speed on industries as varied and complex as defense, cable and computer software.
In the Lockheed case, Justice asked the presiding judge for an October trial date, while the companies pushed for June. (The trial is set to begin Sept. 8, the same day the Microsoft case is to start.) Some investigations - including a look at allegations of anti-competitive practices in the credit card industry - have puttered along for months without results.
A thriving economy and booming stock market are putting more on Justice's and the FTC's plate these days. The two agencies received 3,702 pre-merger notifications in 1997, more than double the figure in 1991. But experts say the activism that now marks both agencies is also a reflection of the ideology of the top leadership.
Just as former president Ronald Reagan appointed agency staff who shared his affinity for unfettered markets, President Clinton has favored staff who tilt toward the interventionist side of the antitrust divide.
"There are basically two kinds of antitrust people. The 'I think I can make it better' people and the 'I don't want to stick my nose in unless there's a hell of a problem' people," said antitrust lawyer Joe Simms. "These people are the former."
At the FTC, William Baer, director of the bureau of competition, is credited with pushing get-tough tactics in negotiations. He is particularly fond, local lawyers say, of the so-called "crown-jewel provision," which requires companies to divest treasured assets if, by a certain deadline, they fail to divest something less valuable. Baer has also insisted that companies selling assets identify real buyers for them before deals can get the FTC's approval.
"I've deliberately tried to make sure that we weren't settling cases too cheaply," Baer said. "It sends a message: If you want to negotiate a settlement with us, it has to be a real settlement."
Meanwhile, at Justice, Klein is refining a reputation for justifying government intervention with theories that are downright adventurous. For instance, in the Primestar case, Verveer said, part of Klein's argument will be that the merger could thwart potential rivals, as well as actual competitors. It's a theory, according to Verveer, that the courts have not blessed and that did not prevail the last time it was advanced more than two decades ago.
Agency veterans point out that if Justice or the FTC ever get truly buried, they'll perform a kind of legal triage by pulling lawyers from lower-priority cases. Justice has a total of 20 lawyers and support staff on the Microsoft case, lawyers familiar with the case said. That's a lot, but hardly an unbearable drain on resources.
Still, over Memorial Day weekend, Justice staffers said, the place was hopping. All-nighters are no longer rare and the typical workday lasts from 9 a.m. to 9 p.m. Hoping to buck up the troops, Klein drops in to deliver pep talks and remind staffers of the importance of their work.
Even super-litigator David Boies, who was recruited to lead the charge against Microsoft and is a famous for logging marathon hours, said his part-time job with the Justice Department eerily resembles private litigation at its most frenetic.
"If someone walked into our war room during the week we filed against Microsoft, they wouldn't have been able to tell it apart from any of a dozen major cases I've litigated," Boies said.
c Copyright 1998 The Washington Post Company
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