Antitrust in Transition - What to Look for in a Second Obama Administration
In 2008, then-candidate Obama promised invigorated antitrust enforcement in his administration. As President, he kept that promise. The Justice Department's Antitrust Division successfully blocked high-profile mergers like AT&T/T-Mobile; challenged Apple and several publishers regarding e-book pricing; and obtained record fines and jail sentences in settlements in the ongoing auto parts investigations. One of its first actions was to withdraw guidelines on monopolization issued by its predecessors; however, any expected flood of such cases never materialized. The independent Federal Trade Commission (FTC) also was re-invigorated and aggressively pursued several hospital mergers and so-called "pay for delay" arrangements by brand name drug companies while investigating high-profile companies like Google. A second Obama administration is likely to continue these efforts, although with different leaders at the agencies.
At the DOJ's Antitrust Division, Bill Baer has been nominated for the new Assistant Attorney General and approval from the full Senate is expected soon, perhaps even during the current lame-duck session. Baer is well-known and respected by all parts of the antitrust community. As head of the FTC's Bureau of Competition in the 1990s, he led successful challenges to the merger of Staples/Office Depot and the conduct of Toys R Us. As head of the antitrust group at Arnold & Porter LLP, Baer has represented companies like General Electric, Cisco and Intel in their dealings with U.S. and foreign antitrust officials. He will be a familiar face to competition lawyers around the globe and his confirmation testimony gave no indication of changes from recent Antitrust Division enforcement.
At the FTC, professor Josh Wright of George Mason University Law School has been nominated to replace Tom Rosch as one of two Republican Commissioners. Rosch advocated for more aggressive antitrust enforcement by the FTC than had been expected and, in most cases, supported FTC Chairman Jon Leibowitz's renewed use of FTC Act Section 5. Wright has been a prolific writer on many antitrust topics and has criticized several recent actions by the FTC, especially its recent use of Section 5's "unfair methods of competition" cause of action. Wright's confirmation hearings have not yet been scheduled, but, if confirmed, he is likely to push to rein in some of the FTC's recent antitrust pursuits.
FTC Chairman Leibowitz has said he expects to leave the Commission in the coming months, although no date has been set and no replacement has been named. His replacement as Commissioner could be named Chairman, or one of the other Democratic Commissioners, Julie Brill or Edith Ramirez, could ascend to that position. The departure of Leibowitz and Rosch might bring a reduced emphasis on pure Section 5 cases but otherwise is unlikely to drastically change the FTC's antitrust or consumer protection agendas. Chairman Leibowitz has indicated a strong desire for the Commission to make a decision before the end of the year regarding its long-running investigation of Google. Media reports indicate that FTC staff is recommending filing suit over Internet search and smartphone patent actions taken by the company.