We use cookies to give you the best online experience. By using our website you agree to our use of cookies in accordance with our cookie policy. Learn more here.Close Me
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
leadership.
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
the Commission.
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
System.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An interesting and growing debate in the antitrust arena is whether most favored nation ("MFN") pricing provisions are pro-competitive or anticompetitive. For many years, MFN provisions have been considered a fairly noncontroversial contract term included by purchasers in an attempt to assure that other buyers do not receive a more favorable price.
A well-attended program on antitrust treatment of "bundled pricing" and "loyalty discounts" at the American Bar Association Antitrust Section Spring Meeting highlighted the confusion generated by the antitrust law implications.
In remarks made this week at the International Competition Network annual conference, Federal Trade Commission (FTC) Chairwoman Edith Ramirez stated that health care will continue to be a top priority for the FTC.
An EU General Court (GC) judgment has considered the difficult issue of independent parallel behaviour by competitors under EU competition law, and in particular when this strays into a "concerted practice".
The U.S. Department of Justice ("DOJ") has reached a settlement with Anheuser-Busch InBev ("ABI") and Grupo Modelo S.A.B. de C.V. ("Modelo"), requiring ABI to divest Modelo’s entire U.S. business to Constellation Brands Inc. ("Constellation").
Microsoft v. Motorola is precedential only in the Western District of Washington, but at 207 thorough and well-reasoned pages, it provides a valuable roadmap and will likely be quite influential in future RAND cases in other U.S. and foreign jurisdictions.
Nearly a year ago the Kansas Supreme Court issued a ruling that boldly separated Kansas, and its state antitrust law, from prevailing federal antitrust precedent in matters of resale price agreements.
