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About David Balto

David Balto provides counsel to companies on a broad range of antitrust matters and frequently represents parties before the Antitrust Division of the Department of Justice, the Federal Trade Commission, Congress and state legislatures. He has over 20 years of experience as an antitrust attorney in the private sector, the Antitrust Division of the Department of Justice, and the Federal Trade Commission.
FTC’s Winning Streak Is Over

Six months ago in Can the FTC Be a Fair Umpire? I wrote about the concerns arising from the Federal Trade Commission’s dual role as prosecutor and final decision maker in its administrative litigation. I noted that for 19 years in every case brought by the Commission it had found an antitrust violation. I observed “One must wonder about fairness when the pitcher is also the umpire – - and is always calling strikes.” This winning streak did not mean a perfect record – indeed in the cases appealed to Courts of Appeal the FTC was reversed 20 percent of the time (compared to a 5 percent reversal rate for federal court judges).

Congress noticed. In two antitrust oversight hearings last fall t [...]

FTC at a Crossroads: The McWane Case

Anyone familiar with the antitrust newstream realizes there is a tremendous amount of controversy about the Federal Trade Commission’s administrative litigation process. Unlike the Antitrust Division which fights its litigation battles in Federal Court, the FTC has a distinct home court advantage. FTC antitrust cases are typically litigated administratively with a trial conducted before an FTC administrative law judge, who issues an initial decision, followed with an appeal to the full Commission for a final decision. I have authored a couple of recent articles as have others that question the fairness of the FTC acting as both prosecutor and judge. These concerns have only been amplified [...]

Dear Congress: Don’t Take Away the FTC’s Best Tool for Fighting Patent Trolls

In anticipation of a House Energy and Commerce Committee hearing next week, entitled “The FTC at 100: Where Do We Go from Here,” David Balto offers this post, discussing the important role Section 5 of the Federal Trade Commission Act can play in the battle with patent trolls.

One hundred years ago Congress created the Federal Trade Commission to serve as this nation’s consumer protection cop. Recognizing the limits of the antitrust laws and the lack of consumer protection law Congress gave it broad powers under Section 5 of the FTC Act to attack “unfair trade practices” and “unfair methods of competition.” On December 3, the House Energy and Commerce Committee will hold an FTC oversight h [...]

The FTC: a Tough Data Security Cop

Protecting data security is the most important consumer protection issue for the economy. Each year the Federal Trade Commission receives a flood of identity fraud complaints. Efforts to diminish the problem by noting the limits on consumer liability are just plain wrong. There are liability protections but the external costs can be overwhelming. Consumers must pay for credit repair services or insurance against credit fraud which cost over $7.5 billion annually. Consumers also have to spend a substantial amount of time resolving identity theft (estimated at 21 hours in a 2009 study). The harm does not end there. Identity theft can lead to debt collection harassment, lost employment opportun [...]

A Tale of Two Antitrust Agencies

Charles Dickens’ famous novel A Tale of Two Cities begins with “It was the best of times, it was the worst of times.” Dickens’ brilliant prose could have been describing our twin antitrust enforcement agencies.

This Friday the House Judiciary Committee held a hearing to evaluate antitrust enforcement. After a period of inactivity, the Department of Justice (DOJ) has found its footing successfully litigating in court and providing real consumer benefits that affect Americans’ pocket books. The Federal Trade Commission (FTC), on the other hand, has failed to show the same progress and is falling behind in its mission.

Our story begins under the previous administration where there was [...]

The FCC’s Incentive Auction: Getting Spectrum Policy Right

The authors are David Balto, an antitrust attorney in Washington, D.C., who was formerly a policy director of the Federal Trade Commission, attorney-adviser to Chairman Robert Pitofsky, and trial attorney at the U.S. Department of Justice, and Hal J. Singer, Ph.D., who is a Managing Director at Navigant Economics and a Senior Fellow at the Progressive Policy Institute.

As the Federal Communications Commission (FCC) considers how to allocate the broadcasters’ spectrum in the upcoming “incentive auction,” it should be guided by economic principles designed to maximize social benefits. To date, the spectrum policy debate largely has been driven by considerations of the private benefits of [...]

Can the FTC Be a Fair Umpire?

Nearly 100 year ago, Congress established the Federal Trade Commission to protect consumers against unfair, deceptive and anticompetitive practices.  Part of the reason for its creation was to create an independent, fair and expert body to resolve complex antitrust claims, because the federal courts seemed incapable of enforcing the antitrust laws.  So Congress enabled the FTC to adjudicate its own cases in an administrative process.

Over the century, the Commission had many successes, but its power to adjudicate cases has always been controversial.  The FTC issues complaints which are adjudicated before an FTC Administrative Law Judge and that decision can be appealed to the Commission. [...]

Edith Ramirez is Fantastic Choice for FTC Chairman

Commissioner Edith Ramirez became the new Chairwoman of the Federal Trade Commission on March 4. The White House announced the selection on February 28th.

Chairwoman Ramirez is an excellent choice for antitrust enforcement generally, but is truly an ideal Chair for the FTC as it prepares to face the next generation of anti-competitive practices stemming from patent misuse.  She uniquely combines an IP litigation background with a commitment to aggressively enforce the spirit and the letter of the antitrust laws, and may prove a valuable friend in the movement for patent litigation reform.

Prior to joining the FTC, Chairwoman Ramirez was a partner with top intellectual property litigation fi [...]

Paper Considers Consolidation in Health Care Markets

In Consolidation in Health Care Markets: A Review of the Literature, authors David Balto and James Kovacs in a study funded by and submitted to the Robert Woods Johnson Foundation discuss the recent literature concerning consolidation across various health care markets.

The paper focuses on consolidation of hospital, provider, and health insurance markets with the goal of understanding the impact consolidation has on health care prices, quality of care, and overall costs.  The paper seeks to provide an overview of the key research and present findings in different areas of healthcare to facilitate further investigation.

The authors find that while there is consolidation across many heal [...]

No Reversal of Fortune for Google’s Opponents

We all remember the movie “Reversal of Fortune” that retells the real life story of Claus von Bulow, accused of attempting to kill his super-wealthy wife. When the movie begins life looks extremely bleak for Claus – he has been convicted of murder, the factual evidence seems compelling and he seems like a wholly unsavory character. Yet Alan Dershowitz arrives on the scene, and although he believes Claus is guilty, he finds new legal avenues, undermines the key evidence, and reverses the conviction.

Google’s opponents probably feel like Claus with the news that the decision in the ongoing Federal Trade Commission antitrust investigation has been delayed. The FTC seemed poised to close [...]

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