, the world's major airlines ... The list goes on of global behemoths and entire industries whose future hinges on how antitrust regulators and enforcers perceive corporate consolidation plans and pursue existing competition cases.
In this environment, the worst mistake business leaders can make is to ignore the decisive connection between Main Street opinion and Beltway deliberation. Antitrust issues hinge by definition on that connection.
No matter who's at the Department of Justice or the Federal Trade Commission, the highest criterion remains what is best for the American people in terms of the pricing and availability of goods and services. Technical points of law often can and should be trumped by such larger considerations. It's not only permissible, it's appropriate that regulators heed the vox populi even as business leaders aggressively sell their points of view to that public.
Business leaders can thus help shape the climate of public opinion in which antitrust decisions determining their futures are made. One measure of their leadership at these crucial junctures is how effectively they do so. In this context, an approach recently taken by Intel CEO Paul Otellini is of particular interest. A day after the FTC filed an antitrust suit against his company, he attacked Washington for retarding economic recovery, warning that $7 billion earmarked by Intel for new jobs in three states "could go elsewhere as a result."
Presumably, Otellini intended to seize on public disillusion with the Obama Administration while simultaneously reminding people how much they stood to gain (from Intel, in this instance) as an alternative. It's a powerful carrot-and-stick strategy, perhaps, but the problem is that political opinion changes overnight. By the time the Intel case is resolved, Obama and his regulators might be heroes again.
For perhaps the most persuasive model of aggressive leadership on this issue, we can look back instead some 20 years to a career that is particularly relevant today as the major airlines vie -- in what may be a do-or-die game -- to merge or forge global alliances that ostensibly benefit the American people and pass muster in Washington. Even as
, a unit of
, currently now seeks an antitrust exemption from the Department of Transportation to work more closely with
, the shadow of former CEO Bob Crandall looms rather imposingly.
Crandall's leadership, and its relevance to most industries today, was effective on a number of fronts -- he virtually invented frequent flyer miles - but nowhere more effective than when anti-competition attacks against American were underway. Daniel Swanson, co-chair of the Antitrust Practice Group at Gibson, Dunn & Crutcher and one of the lawyers representing Crandall during the decisive early 1990s, remembers how Crandall always listened to his lawyers as they predictably urged caution, "but if he decided to bypass such counsel, he did so with his eyes wide open. If he felt some risk was worth taking, he went forward, but he'd also take full responsibility for the results."
The most concrete example of Crandall's leadership in an antitrust context involved litigation initiated by rival carriers apoplectic over the "value pricing" that American had introduced to simplify the Byzantine system in force. In 1993, the case wound up in Galveston, Texas, a notorious plaintiff's haven, in a trial presided over by a judge who now resides in prison. Opposing counsel included the formidable duo of Joseph Jamail and David Boies. They were suing American for billions, which, as Swanson reminds us, was a lot of money in those days.
Decisively, Crandall himself took the stand to argue why value pricing would cut fares and benefit consumers. Jamail and Boies notwithstanding, the jury returned a verdict for American right after lunch. As Swanson points out, his client's message on the stand exemplified precisely the dominant theme that business leaders should affirm in response to antitrust challenges. The message is the specific benefit of a merger or pricing initiative to the public, period.
There's a direct continuity between selling the corporate initiative ahead of time, before antitrust lawsuits or inquiries arise, and defending it later in court. At the very least, says Swanson, the former is preparation for the latter. At best, such focused communications deter those lawsuits and inquiries. In any event, Crandall was the face of American Airlines who believed enough in what he was selling to disarm formidable opponents.
Alas, the intended benefits of American's value pricing were chipped away and finally buried amid untenable price competition and as rival companies continued to complicate the industry's fare structure. In later years, the rise of low-cost carriers, delivering the same message of greater availability at cheaper fares, would address the underlying issue to a significant degree.
Crandall's leadership model left its mark in any event. As Swanson points out, American is "the one major airline that has not gone bankrupt."
Richard S. Levick, Esq., is the president and chief executive officer of Levick Strategic Communications www.levick.com, a crisis communications firm. He is the co-author of Stop the Presses: The Crisis & Litigation PR Desk Reference and writes for www.bulletproofblog.com. He was named to the 2009 NACD/Directorship list of "The Most Influential People in the Boardroom." In decades past he was a frequent participant in many anti-nuclear protests. Reach him at email@example.com.