Funny what a change at the top will do. For three years, the Justice Dept.'s chief trustbuster, Anne K. Bingaman, whipped up antitrust investigations against corporate giants and small fry alike. But when she leaves her post sometime in the next two months, antitrust policy falls into the less fervent, more deliberative hands of Joel I. Klein, her principal deputy and designated successor. For Microsoft Corp., which is stirring up fresh charges from its rivals of anticompetitive behavior, that could mean a less antagonistic relationship with Justice. Klein's challenge: fashioning from the recurring complaints against Microsoft a case that can hold up in court.
The good news for Microsoft is that Klein, 49, has a rep for being far more of a pragmatist than the crusading Bingaman. A leading U.S. Supreme Court litigator who served as Clinton's Deputy White House Counsel from 1993 until he joined Justice last year, he will serve for now as Acting Assistant Attorney General for the Antitrust Div.--which puts him in charge of the Microsoft probe and other controversial cases. He also has the inside track for the post in a second term.
"ONE AT A TIME." Harvard-educated and a longtime Washingtonian, Klein is an Administration insider. He spent two years as the First Couple's troubleshooter on the Whitewater probe and regularly attends the Clintons' New Year's Renaissance Weekends in Hilton Head, S.C. He's also widely lauded for his judgment in dealing with knotty issues. "He doesn't fit comfortably into any one camp in antitrust," says Federal Trade Commission Chairman Robert Pitofsky, an old friend of Klein. "He takes his cases one at a time."
Microsoft may be glad of that. True, it was Klein who successfully argued last year at the District of Columbia Court of Appeals in favor of reversing a lower court dismissal of Justice's 1994 landmark settlement with Microsoft. But the same appellate-lawyer instincts that helped win that round may make him more cautious about bringing a case without solid precedent. "He won't pursue [Microsoft] with religious fervor," says D.C. antitrust lawyer Mark C. Schechter, who had worked on earlier Microsoft investigations while at Justice.
Klein has long dealt with sensitive political problems. At the White House Counsel's office, he handled such issues as affirmative action, school prayer, and shepherding the confirmations of Supreme Court Justices Ruth Bader Ginsburg and Stephen G. Breyer through the Senate. In private practice, he argued 10 cases before the High Court, including a 1992 victory establishing the right of students to sue federally funded schools for sexual harassment. "He is one of the best advocates of his generation," says Acting Solicitor General Walter Dellinger.
Klein's priorities at Justice? He says he'll prod other governments to cooperate in stamping out global cartels and will work to cut government regulation in favor of market competition. And he wants to clarify legal boundaries in antitrust issues involving intellectual property, health care, and high tech. "We don't want to just resolve a dispute between the parties," he says. "We want to show the Division's thinking on law enforcement and doctrine" in key areas.
The bottom line: Corporate America is likely to see continued vigorous enforcement at Justice, but with a more reflective bent. For many--including Microsoft--that might spell some relief.