Menu
Browse Options
McSweeny Confirmed by Senate to Fill Vacancy at FTC, Will Give Democratic Majority to Commission

The Federal Trade Commission will soon be back to having a full complement of five commissioners. Today, the U.S. Senate, by a vote of 95 to 1, confirmed Terrell McSweeny to fill a vacancy at the agency created by the departure of Jon D. Leibowitz more than a year ago. The term runs through September 26, 2017.

The White House announced the nomination of McSweeny in June 2013. Although her nomination was not controversial, her confirmation was delayed because the Senate failed to take a vote before year’s end. In November 2013, the  Senate Commerce, Science, and Transportation Committee had voted to report the nomination to the full Senate; however, the nomination needed to be reconsidere [...]

Combination of Idaho’s Largest Health System and Largest Physician Practice Must Be Unwound

Within the span of about two weeks, each of the federal antitrust agencies has been handed a major win in their merger enforcement efforts.

Last Friday, it was the Federal Trade Commission’s turn. The U.S. district court in Boise ordered St. Luke’s Health System, Ltd.—the largest health care system in Idaho—to divest Saltzer Medical Group—the state’s largest independent, multi-specialty physician practice—after concluding that St. Luke’s 2012 acquisition of Saltzer violated Section 7 of the Clayton Act and the Idaho Competition Act. In that matter, the FTC and the State of Idaho joined a challenge initiated by private plaintiffs.

On January 8, the federal district court in San Fr [...]

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 [...]

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. [...]

Just What on Earth Did Actavis Really Say? And Does It Mean Something for Section 1 More Broadly?

It’s going to be a strict, nearly-per-se quick look rule, folks, in more or less every reverse-payment case likely to be brought from here on out.  Dollars-to-donuts.

A few weeks have gone by, and quite a lot of folks are chewing over the entrails of Federal Trade Commission v. Actavis, Inc. The case may finally have ended the decades-long saga of the so-called “reverse payment” or “pay-for-delay” settlements, in which a branded incumbent drug maker pays a would-be generic entrant to stay out of its market and respect its patent.  Unlike most lower courts to consider them, the five-Justice Actavis majority found these deals subject to Sherman Act challenge, under a standard that [...]

Antitrust Division Lawyer Picked to Fill Vacancy on Federal Trade Commission

Terrell McSweeny, Chief Counsel for Competition Policy and Intergovernmental Relations at the Department of Justice Antitrust Division, is President Obama’s pick to fill the current vacancy on five-member Federal Trade Commission.

The White House announced today the President’s intention to nominate McSweeny. According to the announcement, McSweeny has served in the senior counsel position at the Antitrust Division, since 2012.  Prior to that, she served as Deputy Assistant to the President and Domestic Policy Advisor to the Vice President at the White House from 2009 to 2012.

Based on her background, McSweeny appears to be a Democrat. If confirmed, she would provide the Democrats with a th [...]

Supreme Court Opens Reverse Payment Patent Settlement Agreements to Antitrust Challenge

A “reverse payment” settlement agreement is not entitled to “near-automatic antitrust immunity” simply because its anticompetitive effects fall within the scope of the exclusionary potential of the patent, the U.S. Supreme Court ruled earlier this week in a five-to-three decision. Although such agreements, also known as “pay-for-delay” settlements, are not presumptively unlawful, the FTC should be permitted to challenge reverse-payment agreements between Solvay Pharmaceuticals and would-be generic competitors Watson Pharmaceuticals (now Actavis, Inc.) and Paddock Pharmaceuticals under a rule of reason analysis. The case is  FTC v. Actavis, Inc., Dkt. No. 12-416.

Reverse paymen [...]

FTC Commissioner Brill Provides Thoughts on Abandoned IDT/PLX Combination

The Federal Trade Commission’s investigation of the now-abandoned merger between Integrated Device Technologies and PLX Technology was the topic of remarks delivered by FTC Commissioner Julie Brill at Skadden’s and Compass/Lexecon’s annual “Antitrust in the Technology Sector” program in Palo Alto, California, on January 28. “The issues raised by IDT/PLX spanned the Merger Guidelines,” Brill said.

In December 2012, the FTC issued an administrative complaint seeking to prevent Integrated Device Technology’s proposed $330 million acquisition of PLX Technology, Inc. The FTC’s complaint alleged that the combined company would possess a near-monopoly on the production of PCIe swit [...]

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 [...]

Senate Confirms Joshua Wright to Serve as FTC Commissioner

The Senate late on January 1 confirmed Joshua D. Wright to serve as an FTC commissioner. The Senate Commerce, Science, and Transportation Committee issued a statement on January 2, saying that Wright’s nomination, among others, had been discharged from the Committee and confirmed by the Senate.

Wright will replace FTC Commissioner J. Thomas Rosch—a fellow Republican—whose term expired in September. The White House announced the intended nomination on September 10. 

The George Mason University (GMU) Law Professor was confirmed despite tough questioning at a Commerce Committee hearing on December 4. Wright, an economist, has written extensively on antitrust law and economics and is a re [...]

Contributors, Authors, Books, & More...