I am pleased to join with the Chairman in welcoming the
nominees and their families and friends to this confirmation
Dan Bryant is well known to this Committee. He served ably as
a member of the congressional staff, including as Chief Counsel
of the House Judiciary Committee’s Subcommittee on Crime.
Testimony to his work there is the presence here today of
Chairman Hyde, the Ranking Democrat from the House
Judiciary Committee John Conyers, and our own former
chairman, Senator Biden.
In addition, Dan knows the legislative process and -- at the risk
of costing him Chairman Hyde’s endorsement – I must say that I
have found him to be very respectful of the Senate’s role. I look
forward to hearing from him today. His is a most demanding
Mr. James is an attorney from a distinguished firm. Today I will
have some questions for him about his experience representing
clients against government antitrust enforcement efforts.
It will come as no surprise to him if he is asked about his plans
for effective antitrust enforcement. I also doubt that any of us
will be surprised if there are even a few questions about the
The Antitrust Division’s most recent leaders, Ann Bingaman and
Joel Klein, did an extraordinary job reinvigorating the Division
and assembling a first-class team of professionals to enforce our
antitrust laws. His task will be to build on their work and
continue their successful efforts to protect competition and
I want to make three brief points.
Mr. James, you have been so successful in advising an
impressive list of corporate clients that some have joked that
you will have to recuse yourself from doing your job.
You have represented the corporate "Who’s Who" of who wants
to merge. Let me just mention airlines: Your clients have
included American, Delta, United and the new DC Air.
One of your deputies is also from your firm. It will be
imperative that you tell this Committee that you will recuse
yourself from matters affecting the clients of your firm.
In addition, we will want your assurance that you will not seek
waivers from those recusal rules in order to work on matter
involving those former clients. Even the appearance of
impropriety would subject the antitrust division to criticism as it
carries out its important functions.
Second, I want to mention two issues of importance to Vermont
and the New England states. One has to do with the increasing
concentration in the agriculture processing sectors.
One of the first bills I introduced with the Democratic leader this
Congress focuses on concentration in the meatpacking, poultry,
livestock, and dairy processing industries.
A study that is being released today by researchers at the
University of Connecticut raises serious concentration and
antitrust issues affecting New England – regarding a major milk
processor, Suiza Foods.
The report concludes that supermarket retailers and milk
processors, using considerable signaling of price intentions and
undue market power, have bilked New England consumers out
of almost $50 million.
The report notes that Suiza Foods has acquired major processors
in the region and then has dismantled or shut them down. The
report points out that in the Boston and Providence areas, Suiza
processes between 80 and 90 percent of the milk sold in
In other parts of New England Suiza now controls or handles
almost 70 percent of the fluid milk. Thus, Suiza is following the
approach that the best way to eliminate competition and increase
market power is to buy competitors, and then dismantle them.
While they totally lose their investments in these local dairies,
they end up with no competitors and tons of market power.
This is especially disturbing, since milk is an essential food and
since these closures shut down major locally owned businesses
in these communities.
I will ask you later for your assurance, unless you have to
recuse yourself, that you will personally look into these reports
of price signaling and abuse of market power regarding Suiza
Foods, of Texas.
Third, in your writings you have been very critical of the role of
the FTC as a "dual" enforcer of antitrust laws.
I believe that as an independent agency the FTC has performed
valuable service to the nation. Their recent efforts to go after
brandname drug manufacturers for allegedly paying generic
drug companies not to compete is a good example of that
Indeed, under a bill I recently introduced, along with Senators
Kohl, Schumer and Durbin, secret deals made by brandname
and generic drug manufacturers would be referred to the FTC
and DOJ so that consumers could be protected from improper
deals that withhold lower-cost generic drugs from the
The FTC has done a great job in this area, and I would like to be
assured that no matter who is in the White House, consumers
have access to low-cost generic drugs.