'Trustbusters' Stagger under Caseload Wave of Mergers - and Decision to Take on Microsoft - Stretch Justice Department's Antitrust Team

By Robert Marquand, writer of The Christian Science Monitor | The Christian Science Monitor, May 18, 1998 | Go to article overview

'Trustbusters' Stagger under Caseload Wave of Mergers - and Decision to Take on Microsoft - Stretch Justice Department's Antitrust Team


Robert Marquand, writer of The Christian Science Monitor, The Christian Science Monitor


You are a hotshot federal antitrust lawyer - young and idealistic. You saw Tom Cruise in "The Firm," and you are better than he was. But good as you are, can you handle the firepower BankAmerica brings to a merger with Nationsbank? Or the legal teams of Chrysler and Daimler- Benz, when they defend their planned merger?

When corporate lawyers from Worldcom and MCI, or Boeing and McDonnell Douglas, sit across the table from you, they know your weaknesses. They know you have a small staff, that you can't afford star witnesses.

But most of all, the opposing lawyers know the Justice Department is reeling from a huge new wave of mergers - and that today's government trustbusters can really handle only a few big cases at a time. Now they know, too, that a major antitrust suit against Microsoft Corp., expected to be filed today, is likely to preoccupy Justice for years, along with a battle this fall over the Northrup- Lockheed merger. "I am confident our antitrust agencies are stretched beyond the point that is good for the country," says Stephen Calkins, former general counsel for the Federal Trade Commission, who helped block a merger last year between Staples and Office Depot. As a result, he says, many other corporate lawyers "are counting on the government to reach an easy settlement or forego the kind of investigation that would normally take place." For the Justice Department, the biggest challenge today is not crime, drugs, civil rights, or environmental law, but big business. "Antitrust has been at the fulcrum of the Justice Department very rarely, but this is one of those times," says Carl Stern, former spokesman for Attorney General Janet Reno. "The biggest challenge is dealing with these mergers in a more complex market. Suddenly, antitrust law is hot." In the face of complex mergers and consolidations, the antitrust division has moved to beef up its staff over the past four years. It has also partly restored its image as a haven of swashbuckling young lawyers burning the midnight oil to curb corporate greed - an image it lost during the 1980s and deregulation. But truth be told, improvements in anti-trust agencies have not kept pace with the intensity and scale of the corporate game in an era of global markets and $50 billion mergers. The current list is long. Citicorp and Travelers announced plans to merge. So have SBC and Ameritech, two of the Baby Bells created in the breakup of AT&T. During the Reagan administration, federal antitrust lawyers in the Justice Department dropped from roughly 1,000 to 500. Today the figure hovers around 800. Mergers - and probes - on the rise Statistics filed by Justice this month show that the number of corporate filings for mergers has increased by one-third during the past 10 years. The Clinton administration, especially, has been aggressive in investigating these mergers. Statistics show that investigations have increased 300 percent since 1992. "The place is full of verve and enthusiasm right now," says Joseph Sims of the Washington law firm Jones, Day. "They love it. Don't underestimate the psychological rewards of seeing your work on Page 1 in the morning." "We are working hard, and we have the resources we need," says top Justice antitrust lawyer Doug Melamud. "But I won't say it wouldn't be nice to have more resources." At the same time, Justice has taken only a few big cases to court, and has won even fewer of them. …

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