Antitrust Deputy at Justice Dept. Ends Six-Month Tenure

By Liz Crampton, Bloomberg BNA

Andrew Finch joined the Justice Department in April as the antitrust division’s temporary head with the understanding he would stay in that role for a short time, until a permanent leader was confirmed.

In past administrations, that process took a few months at most. Six months later, the DOJ division charged with policing anticompetitive conduct and mergers is still running under Finch.

Confirmation proceedings for Makan Delrahim, the White House’s pick to lead the division, stalled over the summer.

Finch’s job as division chief is now over. The Senate voted to confirmed Delrahim Sept. 27. With Delrahim installed, Finch will move into the top deputy position at division’s antitrust division.

Finch was slated to speak today at a conference in New York, but he canceled the appearance after the Delrahim vote late Sept. 27. Patty Brink, the DOJ’s director of civil enforcement, took the speaking slot.

Finch and his deputies have laid out Delrahim’s vision for the antitrust division by proxy as they wait for him to arrive.

They have stressed the DOJ’s interest in international antitrust enforcement, which Delrahim stated at his Senate confirmation hearing in May.

This week, Finch and his deputies also took on the first antitrust-related suit of President Donald Trump’s administration, seeking to unwind Parker-Hannifin Corp.’s acquisition of Clarcor Inc. The merged entity supplies airlines and the Department of Defense with fuel filtration systems.

It’s rare for the government go after deals that have already finalized. The DOJ received complaints from customers after it signed off, which prompted the agency to take a second look at the $4.3 billion deal, according to a DOJ official. The department said in a statement the companies didn’t comply with data and document requests during the investigation.

Speaking at the Global Competition Review’s antitrust conference in New York, Brink said the competitive problems are with fuel filters, a “quite small” percentage of overall deal.

“Obviously a number of customers were very concerned about this merger to monopoly,” she said. “The facts in that case called for filing a lawsuit, and the administration didn’t hesitate to do so.”

In recent weeks, Finch and his deputy attorneys general have stepped up their public appearances, giving speeches that lay out the policy direction of antitrust enforcement under Trump.

The DOJ is “eagerly awaiting” for Delrahim to join them, Finch said in a Sept. 12 speech at Georgetown Law School. But in the meantime, he said, the division does not “sit idle.”

“Acting AAGs have the full authority to open and pursue investigations, issue [civil investigative demands], bring civil cases, enter into consent decrees (subject to the Tunney Act, of course), authorize grand juries, seek indictments, enter into plea agreements, and issue leniency letters,” he told a crowd of attorneys. “And they have traditionally executed all of those law enforcement roles.”

Delrahim is an antitrust attorney who specializes in intellectual property issues, which has become a focus of global competition regulators worldwide. Delrahim has said he wants the other competition authorities to coordinate with the U.S.

Roger Alford, a deputy assistant attorney general, picked up on that theme and said in an August speech that the antitrust division plans to continue working with China’s antitrust authorities to strengthen its competition agenda.

Finch also has stressed the importance of coordinating with foreign authorities in investigations. U.S. regulators and legislators have repeatedly said they want to dissuade foreign antitrust officials from discriminating against U.S. companies in their investigations by imposing standards that may not exist among U.S. enforcers. The U.S. and its foreign counterparts “should be able to address harm in our respective jurisdictions consistent with the principles of comity,” Finch said Sept. 15 at a speech at Fordham Law School.

Officials see the renegotiation of NAFTA as a means to reach that goal. Finch disclosed in that speech that the antitrust division, along with the Federal Trade Commission, is working closely with the U.S. Trade Representative on a competition chapter being incorporated into the NAFTA renegotiation.

“We look forward to working successfully with USTR and our close, long-time partners in Mexico and Canada to craft a competition chapter that affirms the basic rules of procedural fairness in competition law enforcement,” he said.