The two U.S. antitrust agencies have been waiting for leadership
positions to be filled, which may provide clearer signs on the
direction of antitrust enforcement after three years of the Obama
Administration. Recent action by the U.S. Senate now has brought a
full complement of Commissioners to the Federal Trade Commission,
and the Department of Justice will continue with new interim
There are five Commissioner seats at the FTC. The Commissioners
are nominated by the President with consent of the Senate. The FTC
has been operating with only four Commissioners since the departure
of Commissioner and former Chairman Bill Kovacic, a Republican, who
left the FTC and returned to George Washington University in
October 2011. As no more than three FTC Commissioners may belong to
the same political party, the President had nominated Maureen
Ohlhausen, a Republican, to fill Kovacic's seat. She served as
the FTC's Director of the Office of Policy Planning from 2004
to 2008 and before that in other FTC positions. Commissioner
Ohlhausen has experience in antitrust, privacy, and cybersecurity,
and she should bring a strong voice to FTC decisionmaking in both
competition and consumer protection matters. The Senate confirmed
Ohlhausen's nomination last week.
The Senate also confirmed FTC Chairman Jon Leibowitz to a second
term. A Democrat, he was first appointed to the Commission in 2004
and was designated by President Obama as Chairman in 2009. Under
Chairman Leibowitz, the FTC has been an active enforcer in
technology, energy, and healthcare matters, and ratcheted up the
agency's efforts to stop "pay-for-delay" patent
settlements in the pharmaceutical industry.
The term of Commissioner Thomas Rosch, the other Republican on
the Commission, will expire in September 2012. Commissioner Rosch
has announced he will remain at the FTC until his successor is
confirmed. Given the politics of this election year, it is not
likely that a replacement will be nominated until after the
November elections and, if there is a change in Administration,
this may not happen until well into 2013. Thus, Rosch likely will
remain at the FTC beyond his term. Commissioners Edith Ramirez and
Julie Brill, both Democrats appointed by President Obama, remain on
At the DOJ Antitrust Division, following the departure of
Assistant Attorney General Christine Varney, Principal Deputy
Sharis Pozen had taken the Acting AAG title, but with a plan to
remain at the Antitrust Division only until the end of April. Last
week, the Attorney General announced that, upon Pozen's
departure, Deputy AAG Joseph Wayland would take the Acting AAG
post. Wayland has served as the Antitrust Division's Deputy
Assistant Attorney General for Litigation since September 2010. He
is an experienced commercial litigator and has focused on matters
in which DOJ has considered taking antitrust cases to trial,
including the challenges to H&R Block's acquisition of
TaxAct and the proposed merger of AT&T and T-Mobile USA.
Wayland may hold the Acting AAG title for some months, due to
the same election year politics that have delayed nominee
confirmations at the FTC. The President has nominated Bill Baer, a
partner with Arnold & Porter, to be the new AAG. Baer is a
highly respected antitrust lawyer and former Director of the FTC
Bureau of Competition. However, the Senate has not yet scheduled a
hearing on his nomination, and again it is possible that the Senate
will not act on this nomination until soon after the November
election or even later.
Naturally, businesses and their antitrust counsel look forward
to learning how the November election may shape the direction of
antitrust enforcement. In the interim the U.S. antitrust agencies
are quite capable of pursuing investigations and bringing
enforcement actions even without a full complement of permanent
leadership positions filled. As examples, both agencies have
brought litigated merger challenges in the last few months, such as
DOJ's lawsuit to block AT&T's proposed acquisition of
T-Mobile USA and FTC's action to block the combination of two
hospital systems in Illinois, OSF Healthcare and Rockford Health
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Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
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