December 15, 2008

Obama expected to move quickly after inauguration

The speed with which President-elect Barack Obama has arranged senior White House and cabinet department officials for his new administration suggests that he may change the leadership at the various independent agencies in Washington more quickly than his predecessors.

That includes the FTC, where a president has the authority to designate the chairman from among any of the sitting commissioners. The only incumbent Democratic commissioner at the FTC is Jon Leibowitz. With one vacancy pending since the departure of former Chairman Deborah Platt …

November 24, 2008

Looking ahead to antitrust under Obama

If you want to know what an Obama administration is likely to do in the field of antitrust, take a look at the House Judiciary Committee s Antitrust Task Force, says Judiciary Committee Majority Counsel Anant …

November 10, 2008

Obama s chance to reshape antitrust law

Speculation is that President-elect Barack Obama may have as many as three Supreme Court nominations in his future, but little has been written about the existing or about to be vacancies on the U.S. Courts of Appeal, where cases go first.

According to the Administrative Office of the U.S. Courts, there has been a vacancy on the Second Circuit, which oversees Conn., N.Y. and Vt. since July and two vacancies on the Third Circuit (Del., N.J., Pa., …

October 27, 2008

The coming antitrust evolution

Call it, perhaps, the New, New Learning. Emanating, like the old New Learning, from the University of Chicago.

The so-called Chicago School of law and economics was founded, like the Austrian School, on the assumption that human beings make their economic decisions entirely rationally. The New, New School operates on the principle that that is not always so, that research shows that there s a lot more to it, that behavioral economics makes a …

October 13, 2008

Antitrust and standards-setting

Contending that the U.S. Court of Appeals for the D.C. Circuit contradicted itself when it reversed the FTC s decision against Rambus Inc. for illegally manipulating the computer memory standards-setting process, FTC Commissioner J. Thomas Rosch is encouraging his agency to seek Supreme Court review.

The D.C. Circuit s en banc decision in Microsoft, United States v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001), was the FTC s touchstone in holding Rambus liable for violating Section 2 of the …

September 29, 2008

GAO: FTC should review past oil mergers
more frequently and more deliberately

The Government Accountability Office has told Congress that the FTC should conduct more regular retrospective analyses of past petroleum industry mergers and (2) develop risk-based guidelines to determine when to conduct these analyses given its limited resources.

A report released September 26 found that More than 1,000 U.S. mergers occurred in the petroleum industry between 2000 and 2007, but that the FTC, which has primary antitrust jurisdiction over the …

September 15, 2008

Rosch sets out tight schedule for Whole Foods trial

While both sides wait to find out if the U.S. Court of Appeals for the District of Columbia will grant an en banc hearing to reconsider a smaller panel s July 29 decision reinstating the FTC s Complaint that Whole Foods Market s acquisition of Wild Oats Markets, Inc., FTC Commissioner J. Thomas Rosch has uncorked a 14-page scheduling order that sets trial of the administrative Compliant to begin February 16, 2009. (Civ. No. 07-cv-01021-PLF; Docket No. …

July 28, 2008

Justice Dept. can t withhold amnesty agreements

The U.S. Court of Appeals for the District of Columbia Circuit has ruled that the Justice Dept. s Antitrust Division can t use Freedom of Information Act exemptions to withhold the entire text of the amnesty agreements it negotiates with cartel members who are the first to squeal on their fellow conspirators.

Since October 2005, attorneys for Stolt-Nielsen Transportation Group Ltd. have been seeking access to a trove of approximately 100 prosecution amnesty agreements the Antitrust Division …

July 14, 2008

Two views of federal merger enforcement

Clarifies remarks on role of market definition:
Rosch: FTC, not courts, should judge competition cases

Saying he was taking advantage of FTC Chairman William Kovacic s encouragement of self-criticism within the agency, FTC Commissioner J. Thomas Rosch says he thinks the FTC has arguably abdicated its responsibility to judge unfair competition cases and allowed that responsibility to fall onto federal district courts.

Congress, Rosch says, had not originally intended that outcome. Congress concluded that it was in the public …

June 30, 2008

Teams of ex-commissioners duel in Safe cigarette litigation

Three closely-related friends of the court groups, all with ties to the FTC, have filed dueling amicus briefs in a Supreme Court case that asks whether FTC consent orders and guidance statements preempt state consumer protection laws. The case involves cigarette advertising claims.

One of the briefs in Altria v. Good (U.S. 07-562) came from the FTC itself, which joined with the Solicitor General in arguing that the FTC s actions regarding …

June 16, 2008

From those wonderful folks who brought you the Iraq war

When it comes to the FTC and Intel Corp., the New York Times still doesn’t get it.

In October, 2007 the Times printed what can only be honestly describer as a fictional account of how then FTC Chairman Deborah Platt Majoras was blocking the agency’s staff from investigating Intel’s alleged antitrust transgressions. The paper followed up with an editorial chastising the FTC leadership for failing to pursue Intel.

FTC:WATCH conducted its own …

June 2, 2008

Merger watch – automobile industry software

The FTC has issued a Second Request to the parties in connection with CCC Information Services Inc. s proposed acquisition of Mitchell International, Inc.

CCC describes itself as a leading provider of advanced software, communications systems, and Internet and wireless enabled technology to the automotive claims and collision repair industries.

Mitchell International, Inc.says it is an established market leader when it comes to improving business practices for companies in the insurance, collision repair, …

May 19, 2008

Patent-generic drugs investigations continue

The FTC has launched at least one new investigation of patent settlements between two manufacturers of branded generic pharmaceuticals.

The objects of the agency s concern this time are Par Pharmaceutical Co., Inc. and Paddock Laboratories, Inc.

Par describes itself as developing, manufacturing and distributing generic pharmaceuticals since 1978 with salesamong the top 10 largest generic pharmaceutical companies in the U.S. And says that it has one of the most promising new …

May 5, 2008

Humane Society again asks FTC to enforce the Fur Products Labeling Act

Fourteen months ago, the Humane Society of the United States petitioned the FTC to enforce 15 U.S.C. 69 et seq. [FTC:WATCH No. 694, March 26, 2007]. The agency acknowledged receiving the petition, but no enforcement action apparently forthcoming, HSUS is trying again.

There are those people, of course, who could not care less whether the fur apparel they are wearing is a faux, textile product or derived from the hide …

April 21, 2008

Too big to fail have we hit the limits of merger enforcement?

The consensus opinion is that if the Justice Dept. s Antitrust Division applies routine antitrust analysis to the proposed merger of Delta Airlines and Northwest Airlines, the deal will encounter at most minor resistance: divestiture of a few routes here and there.

Although the American Antitrust Institute has suggested that the Justice Dept. s competition review should go well beyond its standard city-pair analysis to determine how much competition …

April 7, 2008

Treasury shuffles boxes on organization chart:
Antitrust contradictions in regulatory reorganization

A camel is a horse designed by a committee. – Anon

Treasury Secretary Henry Paulson s plan to centralize financial regulation offers little new for the FTC.

Paulson s Blueprint for a Modernized Financial Regulatory Structure (see link) barely mentions the FTC in its consumer protection role and proffers a contradictory role for antitrust enforcement.

Consumer protection responsibility under Paulson s plan would be lodged in a Conduct of …

March 24, 2008

Federal antitrust enforcers cautiously eyeing elections

The general newsmedia may be focused these days on important substantive political developments such as the positions of presidential candidates preachers and who called whom a Judas or a McCarthyite, but senior government officials and elected politicians know better.

That s certainly true within the federal government s antitrust establishment, where FTC Chairman Deborah Platt Majoras and Assistant Attorney General Thomas O. Barnett have already begun looking over their shoulders to see …

March 10, 2008

Majoras resigns, Commission reduced to four

FTC Chairman Deborah Platt Majoras has announced her resignation at the end of March.

Three months into a presidential election year, it is extremely likely that she will be replaced and very likely that Republican Commissioner William Kovacic will become agency chairman.

Majoras term expires in September, Kovacic s in September, 2011. [FTC:WATCH No. 714, February 25]

When the FTC was created at the start ofthe 20th Century, the commissioners elected the chairman …

February 25, 2008

Thinking ahead to January, 2009

The FTC Act provides that not more than three members of the Commission can belong to the same political party and the president gets to designate the chairman. The Commission now has: three Republicans, one independent (Pamela Jones Harbour) and one Democrat, Jon Leibowitz.

Commissioner terms are nominally for seven years, but they can leave earlier or elect to continue to serve after their terms have expired if their replacements havent been confirmed.

Bearing that in mind, …

February 11, 2008

Obama on antitrust

After the 1992 presidential election, those in the business of antitrust law counselors, enforcers, academics, newsletter editors scrambled to discover which textbook the president-elect had used when he taught antitrust law at the University of Arkansas. To no avail.

In mid-2007, the American Antitrust Institute asked all of the declared presidential candidates for their views on U.S. competition policy. Only two Democrats responded, former Sen. John Edwards and Sen. Barack Obama. No Republicans have.

In October, FTC:WATCH …

January 28, 2008

Mislabeled apparel still defying Fur Products Labeling Act

Ten months ago, the Humane Society of the U.S. asked the FTC to enforce the Fur Products Labeling Act, 15 U.S.C. 69 et seq. against several national clothing retailers who, it alleged, are mislabeling some of their faux fur-trimmed products. Sometimes the faux fur isnt faux, but real fur from real animals.

So, who cares? People who have made a moral decision that they dont want to wear animal fur or may be allergic.

…

January 14, 2008

Merger watch
Structural factors forecast enforcement 80% of the time

Traditional structural factors still retain their power to determine the outcome of FTC investigations of corporate collusion, according to an FTC economists study.
Using an analytic technique that reverse engineers antitrust policy by comparing actual FTC enforcement decisions with the data that the agency staff studies in coming to those decisions, economist Malcolm B. Coates attempts to tease out the relative importance of structural factors (such as market concentration, product homogeneity, efficiencies, and buyer sophistication) …