Antitrust Alert: Two New Commissioners to Join the FTC

In the coming weeks, two new commissioners will join the Federal Trade Commission (FTC).  On March 3, 2010, the U.S. Senate unanimously confirmed the appointments of Julie Brill and Edith Ramirez to fill the two open seats on the Commission. 

Brill has served as the Senior Deputy Attorney General and Chief of Consumer Protection and Antitrust for the North Carolina Department of Justice since February 2009, and prior to that she held a similar position in Vermont for over twenty years.

Ramirez was a partner in private practice specializing in appellate work, entertainment and media litigation, and intellectual property litigation in Los Angeles, California, according to her law firm profile.  Ramirez served as the California Deputy Political Director and Director of Latino Outreach for “Obama for America.” 

The FTC is an independent agency headed by five commissioners, nominated by the President and confirmed by the Senate.  Each commissioner serves a seven-year term, and no more than three commissioners can be from the same political party.  Brill and Ramirez, both Democrats, join FTC Chairman Jon Leibowitz, also a Democrat, and Republicans William E. Kovacic and J. Thomas Rosch.  Brill fills the seat of former Commissioner Pamela Jones Harbour, whose term expired in September 2009.  Harbour has remained at the Commission pending her replacement and recently announced that she will be stepping down in April.  Ramirez fills the seat vacated in September 2008 by former FTC Chairman Deborah Platt Majoras, now Chief Legal Officer at Procter & Gamble.  Both Brill and Ramirez begin seven-year terms. 

At her December 2009 confirmation hearing before the Senate Committee on Commerce, Science and Transportation, Brill said that her "top priority will be focusing on economic scams that have been so pernicious to consumers during the economic crisis.  These are issues like 'get rich quick' scams, foreclosure 'rescue' and 'assistance' scams, bogus government grant schemes, debt settlement scams, credit repair scams, and unscrupulous debt collection practices."  At the same hearing, Ramirez noted the FTC's duty to foster competition in health care and other industries. 

The arrival of Brill and Ramirez is not expected to change the FTC's pro-enforcement posture on antitrust matters or the enforcement priorities set by Chairman Leibowitz.  Despite the downturn in the economy, the FTC has continued to be active in merger enforcement during the past year, obtaining remedies in over ten mergers and filing litigation seeking to block three transactions.  While these challenges were consistent with enforcement actions in past years, the FTC has confirmed its willingness to take merger cases to court.  The FTC has shown a particular interest in consummated deals, healthcare industry matters, and transactions involving vertical overlaps (where the merging companies compete at different levels of distribution in the same industry). 

Outside the merger area, Chairman Leibowitz has made it a top priority to challenge so-called “reverse payment” settlement cases in the pharmaceutical sector.  In these cases, a branded drug company settles a patent infringement suit against a generic manufacturer by allegedly paying the generic to delay its entry onto the market.  Despite several recent losses in court, the FTC has devoted substantial resources to continuing to litigate these cases and to seek legislation prohibiting the practice. 

Another major development is the FTC's lawsuit against Intel, claiming that the chip maker unlawfully protected its monopoly by foreclosing competitor access to the customers.  The FTC alleges that Intel used threats, rewards and exclusive deals to coerce customers to refrain from buying competitor chips and affirmatively mislead and deceived customers and competitors to protect its monopoly.  The Intel case is an important development.  It is the first monopolization case filed by the FTC in a number of years, supporting the FTC's stated goal to bring more “conduct” (non-merger) cases.  The FTC's complaint against Intel alleges not only traditional antitrust violations, but also violations of Section 5 of the FTC Act, which the FTC asserts goes beyond the antitrust laws to cover “unfair methods of competition.”  One of Chairman Leibowitz's goals is to expand the FTC's authority under Section 5, and Intel would be the first case to litigate a separate claim under the unfair competition prong of Section 5 in several decades.