December 19, 2005

Rosch, Kovacic approved

Over the strenuous objections of Sen. Ron Wyden (D-Ore.) the Senate approved the nominations of J. Thomas Rosch and William E. Kovacic to be members of the FTC.

They will replace Orson Swindle and Thomas B. Leary, both of who conscientiously served after their terms formally expired while waiting for the executive and legislative branches to do their work. The FTC Act specifically provides that members may serve until their successors are confirmed.

The two newest members are not …

December 5, 2005

Two commissioners, bureau head voice support:
Self-regulatory solution for spyware problem?

A new generation at the FTC is trying its hand at industry self-regulation.

Commissioners Jon Leibowitz and Pamela Jones Harbour and Consumer Protection Director Lydia Parnes have come out in support of a self-regulatory solution to the spyware/adware problem: the TRUSTe Trusted Download Program.

The certification program is scheduled to be launched in early 2006, as a Beta (preliminary) version.

Both Commissioners released statements supporting the TRUSTe program, …

November 21, 2005

Wyden drops a Google bomb
Gasoline price spikes hold up Rosch, Kovacic confirmations

The Senate Commerce Committee approved FTC nominees William E. Kovacic [FTC:WATCH No. 653, May 9] and J. Thomas Rosch [FTC:WATCH No. No. 661, October 10] unanimously last week, whereupon at least two senators, Maria Cantwell (D-Wash) and Ron Wyden (D-Ore.) moved to keep the nominations off the Senate floor. The two are agitated by what they perceive as price-gouging by the major oil companies during the last year or so when, as the reader …

November 7, 2005

Inter-agency clearance issue fireworks;
AMC panels also debate Microsoft, penalties

Antitrust Modernization Commission (AMC) commissioners and panelists were in violent agreement, to use one panelists phrase, that the AMC should encourage a more orderly division of merger approval cases between the FTC and the DOJ.

It is not a new idea. Former FTC chairman Timothy J. Muris tried to do it in March 2002, and, having failed to consult then Senate Commerce Committee Chairman Ernest Hollings (D-S.C.), failed.

Muris appeared as …

October 24, 2005

FTC civil target wins 5th Amendment chance

The FTC and the United States Attorneys Office for the Western District of Texas are both investigating Ashley Industries, LLC and Steve Wingard, and Mr. Wingard claims that he shouldnt be required to answer FTC questions because forcing him to do so would violate his right under the 5th Amendment to the U.S. Constitution not to be compelled to testify against himself.

In the process, Wingard says that producing documents in connection with the business of Ashley …

October 10, 2005

Merger Watch

Acting with unaccustomed speed, President George W. Bush has chosen to nominate a former FTC bureau director to succeed Commissioner Thomas B. Leary, whose term only expired on September 26.

It took the White House nearly a year to settle on former FTC General Counsel William Kovacic to replace Commissioner Orson Swindle [FTC:WATCH No. 659, Sept. 12], and Kovacic has yet to be confirmed, leaving the FTC with only four commissioners since Swindle resigned at the end of June.

On …

September 26, 2005

Hedge fund manager caught in HSR snare, pays $350,00

After pondering the facts for more than two years, the FTC has pried a $350,000 civil penalty out of a hedge fund manager who neglected to report his funds acquisitions to the FTC and the Justice Dept. under the 1976 Hart-Scott-Rodino Premerger Notification Act.

According to a formal Complaint and settlement filed in U.S. District Court for the District of Columbia, Scott R. Sacane is the managing director of Durus Capital Management (N.A.), LLC, …

September 12, 2005

Merger watch

For outsiders, the merger review process at the FTC is likely to get more confusing than usual as the number of commissioners able to participate fluctuates during the next several months.

Anticipating some recusals and vacancies, the FTC has just revised its definition of a quorum from a majority of the members of the Commission to a majority of the members of the Commission in office and not recused from participating in a matter. The revision amends Section 4.14(b) of the agencys …

July 25, 2005

The Roberts nomination

When Circuit Court Judge John G. Roberts Jr. appears at Senate hearings to determine if he will be confirmed to the supreme Court, replacing Justice sandra Day OConnor, the general press will surely concentrate on what one commentator has called the entertainment issues: abortion, public prayer, sexual privacy, censorship and the like.

But the Washington Post reports today that Democrats plan to challenge President Bushs nominee on economic, social and regulatory issues, hoping to use the confirmation process to highlight their …

July 11, 2005

Self-regulation without the stick

For more than 30 years, the Council of Better Business Bureaus has been operating an advertising self-regulation program designed to keep the government out of the advertising industrys hair. The CBBB has set up an elaborate set of monitoring and reviewing systems which generally forestall FTC involvement in disputed claims and, as an additional benefit, save the taxpayers some money.

Yet, the implicit strength of the CBBBs programs rest to some degree on the understanding that advertisers who decline to …

June 20, 2005

Merger watch

Vertical & horizontal merger analysis:
FTC approves Valero acquisition of Kaneb

Valero L.P. may acquire two petroleum companies as long as Valero agrees to divest three large pipeline and terminal properties, according to a consent agreement between the FTC and the companies. Valero agreed to divest terminal properties in Pennsylvania, pipeline properties in Colorado, and terminal properties in Northern California. The consent agreement also includes conditions on Valeros product pricing and on the exchange of data between different Valero entities.

The FTC used both …

June 6, 2005

Justice Dept. says injunction intruded on executive branch prosecutorial discretion

The Justice Dept. has appealed a U.S. district court order barring the Antitrust Division from indicting and prosecuting two corporations and an individual who participated in the Antitrust Divisions corporate amnesty program.

Judge Timothy J. Savage in the Eastern District of Pennsylvania ruled on January 14 that Stolt-Nielsen S.A., Stolt-Nielsen Transportation Group, Ltd and Richard Wingfield fulfilled their obligations under an amnesty agreement that produced successful prosecutions and broke up an illegal cartel …

May 23, 2005

States tell FTC to butt out of PBM regulation

A coalition of legislators from 10 states and the District of Columbia has asked FTC Chairman Deborah Platt Majoras to restrain her agency from commenting on the subject of state regulation of prescription benefit management firms (PBMs).

While The FTCs advice is particularly useful when the FTC has taken enforcement actions in an area and through those actions has extensive experience in the market, says a May 11 letter from the coalition, Unfortunately, the FTCs …

May 9, 2005

Personnel progress

The Bush Administration has finally settled on a candidate to replace FTC Commissioner Orson Swindle, whose term expired in September, 2004.

The government has begun background checks on former FTC General Counsel William E. Kovacic, FTC:WATCH has learned.

Kovacic is now a professor of law at The George Washington University.

His service at the FTC goes back two decades, when he was an attorney advisor to Commissioner George Douglas during the Reagan administration. He became FTC general counsel …

April 25, 2005

Whatever happened to … Part II

South Carolina State Board of Dentistry D.9311 – On August 17, 2004, the Commissioners stayed their Order of July 28 rejecting the Board’s claim that the “state action doctrine” automatically inoculates a state professional board against antitrust scrutiny, especially in the face of contrary action by the state legislature. [FTC:WATCH No. 637, August 9, 2004].

“[S]olely as a matter of discretion, without taking any position as to the merits of any of the arguments or other statements …

April 11, 2005

Whatever happened to …

A replacement for FTC Commissioner Orson Swindle, whose term expired in September, 2004. One informed source says that the White House personnel office is so traumatized by its experience with Bernard Kerik that the people there are being super cautious. Kerik, the reader may recall, was to be nominated to head the Dept. of Homeland Security until personal problems reported in the press derailed that plan.

Its true that cabinet posts have a higher visibility than the Federal Trade Commission, …

March 28, 2005

Merger watch – how Blockbuster lost its deal

“Antitrust authorities at the FTC were scheduled to hold a meeting Tuesday, at which analysts expected the agency’s five commissioners to discuss the video rental merger.” – Reuters, March 23, 2005

When the commissioners met on Tuesday, March 22, Blockbuster, Inc.’s offer for Hollywood Entertainment Corp. was not on the agenda as an antitrust enforcement item, FTC:WATCH has learned. Rather, the commissioners had some questions that could be roughly translated as, “What the hell is going on?”

…

March 14, 2005

Appeals court overturns FTC Rx drug showcase decision
Patents trump agreements

The simple presence of economic motive weighs little on the scale of probative value.

Accusing the FTC of everything from meretricious arguments to cavalierly dismissing precedent to relying on forced evidence and ignoring its own administrative law judge, a 3-judge panel of the 11th Circuit Court of Appeals has overturned the Commissioners finding that Schering-Plough Corp. and Upsher-Smith Laboratories, Inc. violated the Sherman Act and the FTC Act when Schering settled drug patent litigation by, among other …

February 28, 2005

ChoicePoint: the FTC connection

In December, 2004, the Electronic Privacy Information Center asked the FTC to investigate its allegations that the megadatabase personal information seller ChoicePoint had invented products that circumvent “the public policy purposes underlying the” Fair Credit Reporting Act if not the FCRA itself.

“[C]ommercial data brokers choose who is eligible to buy personal information … a subtle but important deviation from the Fair Credit Reporting Act’s approach, which tends to approve record disclosure based on the use of the information, rather …

February 14, 2005

Merger watch

Economists assess relative importance of factors
Many mergers appear safe below 3,000 HHI;
Customer complaints trump “hot” documents

A newly-minted analysis by two FTC economists of merger data released last year yields insights that might help predict the outcome of an FTC investigation of a given merger. That is — what are the chances the FTC will challenge the merger?

Among other findings: some explicit evidence (e.g., customer concerns) is necessary for an enforcement action on a collusion theory unless the Herfindahl is well into …

January 31, 2005

How the Irish saved competition

The Irish Competition Commission tries its criminal cases in a court with jurisdiction over four areas of law: murder, rape, treason and price-fixing.

You could say they take price-fixing seriously.

The commissioner in charge of the Irish criminal cartel portfolio is an American — former law professor, private practitioner and ex-Federal Trade Commissioner, Terry Calvani.

Among Calvani’s current projects: investigating export cartels such as those authorized by the U.S. Webb-Pomerene Act of 1918.

…

January 17, 2005

Court enjoins Justice Dept. from criminal prosecution

A U.S. District Court has barred the U.S. Justice Dept. from indicting and prosecuting two corporations and an individual who participated in the Antitrust Divisions corporate amnesty program.

Judge Timothy J. Savage in the Eastern District of Pennsylvania ruled on January 14 that Stolt-Nielsen S.A., Stolt-Nielsen Transportation Group, Ltd and Richard Wingfield fulfilled their obligations under an amnesty agreement that produced successful prosecutions and broke up an illegal cartel in the ocean parcel tanker business. When …