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.