Antitrust Law Daily Wrap Up, ANTITRUST NEWS: FTC General Counsel promotes agency’s “unique institutional design”, (Mar 23, 2015)

By Greg Hammond, J.D.

FTC General Counsel Jonathan Nuechterlein presented the keynote address March 20 at the Administrative Law Review Annual Symposium held at American University’s Washington College of Law. In his prepared remarks, entitled “Antitrust: At the Intersection of Private and Public Regulation,” Nuechterlein attributed the agency’s long-term success to its “unique institutional design” and discussed its successful initiatives concerning professional licensure requirements, health care consolidation, and reverse-payment arrangements in the pharmaceutical industry.

Nuechterlein discussed three Supreme Court cases that tell “a compelling back story about what makes the FTC successful as a competition authority”: (1) North Carolina St. Bd. Of Dental Exam. v. FTC (135 S. Ct. 1101, 2015-1 Trade Cases ¶79,072); (2) FTC v. Phoebe Putney Health Sys., Inc. (133 S. Ct. 1003, 2013-1 Trade Cases ¶78,269); and (3) FTC v. Actavis (133 S. Ct. 2223, 2013-1 Trade Cases ¶78,419). These three cases help demonstrate why, 100 years after its founding, the Commission remains a distinctive and invaluable competition policy institution, according to the general counsel.

“For each initiative, the Commission identified a competition policy problem, closely analyzed it over many years with all the investigatory tools at its disposal, and brought a series of enforcement actions to protect consumers from anticompetitive practices,” Nuechterlein stated. “And in each case, the initiatives at issue have transcended party affiliation and individual personalities. These have been multi-decade, bipartisan initiatives exemplifying the finest tradition of this century-old institution.”

Nuechterlein also discussed the FTC’s administrative adjudicatory authority, which it uses to handle the most challenging or complex issues in competition policy. Through this process, the FTC frequently decides new issues of law under the Sherman and Clayton Act, Nuechterlein suggested, noting that the Commission is entitled to no Chevron deference when it does so. While the Commission has an appellate success rate of roughly 80 percent, Nuechterlein notes that reasonable people can still disagree about the legal issues surrounding competition law.

“My narrow point is this: the FTC’s appellate record is exemplary despite the FTC’s charter to help develop competition policy in unsettled areas of antitrust law,” Nuechterlein stated. “And the reason for that success lies in the unique institutional design of the FTC as a bipartisan, empirically-oriented law enforcement institution with competition and consumer protection authority over broad sectors of the economy.”

News: Antitrust FederalTradeCommissionNews