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Division Update Spring 2012

Division Enhances Litigation Capabilities

Deputy Assistant Attorney General Joe Wayland and Director of Litigation Mark Ryan joined the Antitrust Division from private practice, and they brought to the Division from their respective firms a broad range of litigation and trial experience across a variety of subject matters. Both say that they joined the Division because of the opportunity to serve the public and to work closely with the other dedicated professionals at the Division.

Photo of Joe Wayland

Wayland has served as Deputy Assistant Attorney General for Litigation since September 2010. He has worked with every component of the Division and served as the Division’s lead trial counsel on two contested litigations: United States v. H&R Block and United States v. AT&T.

Photo of Mark Ryan

Ryan joined the Division in January of 2012, and his position is a new one. As Director of Litigation, he works directly with the Division’s three other directors—Director of Civil Enforcement Patty Brink, Director of Criminal Enforcement John Terzaken, and Economics Director of Enforcement Bob Majure—as well as the Division’s investigating sections, both civil and criminal. The position was designed to further enhance the Division’s litigation capabilities and to help facilitate efficient cross-sectional use of the Division’s litigation resources. Another reason for creating the position was to help ensure consistent treatment of similar pretrial and trial issues across the Division. Finally, the Director of Litigation may in the future actively participate in contested Division litigation, depending on case-by-case circumstances.

As Director of Litigation, Ryan is involved in matters from the outset to help ensure that potential litigation informs the Division’s decision-making throughout an investigation. He also spends a significant amount of time on the Division’s filed actions, both civil and criminal, and litigation strategy. Moreover, he is helping structure the Division’s litigation training program.

Ryan’s hiring is part of a broad Division effort to buttress and further enhance our litigation capabilities. Adding litigation experience has been an important factor driving the last several rounds of lawyer hiring at the Division, and the Division is supplementing its litigation training program as well. In addition, the Division has made efforts to staff matters across internal section lines: criminal and civil litigations routinely draw on lawyers across section lines and even across offices. These changes are all part of a comprehensive effort to focus on and strengthen the Division’s litigation capacity.

The Division is already seeing fruits from these efforts. The victory in the H&R Block litigation marked the Division’s first win in a contested merger litigation since the 2003 UPM-Kymmene decision involving label stock. Judge Beryl A. Howell’s 86-page opinion in H&R Block cited the 2010 Horizontal Merger Guidelines extensively and reaffirmed several of its key principles, including the use of the hypothetical monopolist paradigm to define markets, the smallest market principle for defining markets, the “timely, likely, and sufficient” paradigm for assessing entry, and the burden-shifting framework that has long governed merger litigation, under which the burden shifts to defendants upon the Government’s establishment of a prima facie case. In terms of trial strategy, the case marked the Division’s extensive use of hostile directs and establishing harm to competition through the testimony of defendants’ own executives.

Although the AT&T litigation did not go to trial because the parties abandoned their proposed transaction, the matter too highlights the Division’s litigation strength. During pretrial proceedings, Division attorneys litigated aggressively and made clear to the parties that they would be facing a committed, strategically savvy adversary at trial.

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