President Obama recently announced his choices for leading the two federal antitrust agencies and both are familiar names in antitrust circles. Obama designated current FTC Commissioner Jon Leibowitz as Chairman of the FTC andnominated former FTC Commissioner Christine Varney as Assistant Attorney General for Antitrust.
In his term as Commissioner, Leibowitz has built a reputation as an advocate for aggressive antitrust enforcement. Of particular interest to those in the life sciences industry is Leibowitz’s strong criticism of reverse payment settlements. In a strongly-worded statement that accompanied the FTC’s recent announcement of a lawsuit against several pharmaceutical companies related to patent lawsuit settlements over the testosterone supplement AndroGel (see our article), Leibowitz said that “[e]liminating these pay-for-delay settlements is one of the most important objectives for antitrust enforcement in America today.”
Leibowitz went on to announce his support for a “two-pronged approach to eliminating these unconscionable deals,” consisting of continued FTC legal challenges to reverse payment settlements and advocacy for legislation “which would offer a simple, effective and straightforward solution to the problem by banning payments from the brand to the generic while permitting legitimate settlements.” On the latter prong, we note Leibowitz’ tenure as staff director for the United States Senate Antitrust Subcommittee and as chief counsel to Senator Herb Kohl (D-WI), the then and current Chair of that Subcommittee and the author of such legislation.
Because he was a Commissioner at the time of his designation as Chairman, Leibowitz's elevation did not require Senate confirmation. There remains a Democratic vacancy on the five person Commission.
Varney, currently our colleague at Hogan and Hartson, was nominated by President Obama to lead the Antitrust Division of DOJ in late January and is currently awaiting a confirmation vote in the Senate. Pending the outcome of that vote, we will withhold further comment except to wish her well.