Antitrust Law Daily Wrap Up, AGENCY NEWS: Commissioner Brill reviews FTC’s actions, agenda over past year, (Nov 7, 2014)

By Greg Hammond, J.D.

FTC Commissioner Julie Brill presented the keynote address at the ABA Fall Forum yesterday at the National Press Club in Washington, D.C. In her prepared remarks, entitled “What’s Past is Prologue: FTC’s Competition and Consumer Protection Priorities,” the Commissioner discussed the FTC’s enforcement actions and agenda over the course of recent years and the years to come.

Noting that the FTC is celebrating its centennial this week, Brill discussed President Wilson, Justice Brandeis, and other leaders who built the FTC. “The FTC’s founders understood that change was and would be the current electrifying the economy. So they designed an agency that could operate in dynamic times—one that values decision-making based on consensus and consensus based on documented facts and reasoned analysis,” the Commissioner stated. “They gave us flexible, remedial authority, potent enforcement tools, and practical research capabilities. So equipped, the FTC has been able to pursue our mission—protecting competition and consumers—throughout the last century and is well positioned to tackle the challenges of the next.”

First, the Commissioner discussed enforcement actions in the health care industry, noting that the FTC and the Affordable Care Act (ACA) share common goals of promoting high quality and cost-effective health care. She also noted the Sixth Circuit’s St. Lukes decision, upholding the Commission’s determination that ProMedica Health System violated antitrust laws when it acquired rival St. Lukes, and marking the first appellate court opinion on a health care provider merger in 15 years. Further, Brill discussed the FTC’s commitment to ending anticompetitive “pay-for-delay” pharmaceutical patent agreements, citing the U.S. Supreme Court’s Actavis decision, and the FTC’s answer to the key question arising out of that case: “payments to delay generic competition do not have to be in the form of cash to qualify for scrutiny as unlawful pay-for-delay deals under Actavis.”

However, “[o]ur recent significant antitrust enforcement actions have not been confined to the health care arena,” Brill said, noting recent settlements and decisions in the propane exchange tanks, glass bottle, and iron pipefittings industries.

In addition and apart from antitrust enforcement efforts, Brill discussed the Commission’s twin mission of protecting consumers, noting that cases are “more and more likely to be about consumer challenges in the wired (and wireless) world.” Specifically, she discussed significant enforcement actions in the areas of mobile in-app purchases, including the recent settlements with Apple and Google, and the pending suit against Amazon, the Commission’s first broadband throttling case against AT&T, and data security.

“As our economy has exploded into an online, high-tech, hyperconnected, big data-driven world, it seems almost miraculous that the FTC has been able to continue to operate as our founders’ envisioned, through enforcement actions, policy prescriptions, and research based on facts and bipartisan consensus,” Brill said. “We will continue to protect competition and consumers—efficiently, effectively, and equitably—no matter what change the next year—or the next hundred years—brings on.”

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