Antitrust, Appointments and Presidential Front-Runners: Part 1

Substantial and substantive issues of national importance are often obscured by the usual myopic and frenzied focus on political talking points, sensational sound bites and collateral name-calling. This is perhaps better exemplified in presidential elections than contests for other political offices. The current race to the presidency is plainly setting a new high (or low) watermark in that regard. In an effort to bring some clarity to a whirlpool of contentiousness clouded by the blue smoke and mirrors fueled by political pundits, our next columns will be offering an objective assessment of the presidential front-runners, Hillary Clinton and Donald Trump, and their views regarding antitrust, competition and related consumer protection issues. Such key issues affect the daily lives of millions of people and businesses, from the single consumer to the largest global corporations, yet are often overlooked in more sensational campaign news coverage. We begin this month by reviewing just a few of the key antitrust and consumer protection issues that will ultimately be decided by the next administration.

First, as we previously discussed, the death of U.S. Supreme Court Justice Antonin Scalia earlier this year creates an opening on the nation’s highest bench, which currently has only eight Supreme Court justices. The impact of this vacancy is at least twofold. For one, the court no longer has the unique voice of Scalia, a critic of the antitrust laws, and as we have explained, one who was often unlikely to find antitrust injury and harm where the relevant facts painted a colorable competition claim even where a jury had reached the opposite conclusion and found antitrust liability. Conversely, a new member of the court will of course bring his or her own unique voice to the court, and we have previously examined President Obama’s Supreme Court nominee, Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit, and his own antitrust perspective and expertise.

In addition to bringing a necessary unique perspective to the bench, the newest justice will also find himself or herself in the midst of a court frequently divided over antitrust issues. By our own rough count, approximately 40 percent of the court’s substantive antitrust opinions in the last 10 years have been decided along 5-4 or 6-3 votes. Thus, the next Supreme Court justice has the potential to be a key swing vote in important cases, thereby amplifying his or her potential impact on the court, particularly in the wake of Scalia’s death.

Second, while we are hardly alone in stressing the impact the next president of the United States will have on the composition of the Supreme Court into the future, far less attention has been paid to the next president’s potential influence on other vital regulatory and enforcement bodies. For example, the five-member Federal Trade Commission provides a singular opportunity for the next commander-in-chief to not only affect antitrust and consumer protection enforcement policy, but perhaps even more importantly, its merger review process. Following the departures of former Federal Trade Commissioners Joshua Wright and Julie Brill, just three commissioners are left, namely, Chairwoman Edith Ramirez, Maureen Ohlhausen and Terrell McSweeny. It is anticipated that Ramirez, whose term officially ended nearly two years ago, will stay on only through the remainder of Obama’s final term in office, a not uncommon occurrence on the FTC. Thus, the incoming president will have the opportunity to appoint three out of the five FTC commissioners, including a new chair, for seven-year terms. Notably, no matter who the next president is, those appointments will include a commissioner from across the aisle, as no more than three commissions may be from the same political party. Ohlhausen is a Republican and McSweeny is a Democrat; thus, irrespective of the political affiliations of the next president, he or she will presumably nominate two commissioners from their own party, and a third commissioner from the opposing party. These commissioners will not only set antitrust enforcement and consumer protection priorities and policies, but also review many potential mergers for anti-competitive effects, an issue of tremendous concern to many corporations in an environment where mergers are being scuttled or abandoned with regularity due to anti-competitive concerns, real or imagined, raised by government regulators like the FTC.

In addition, the next president will also appoint the next head of the Antitrust Division of the U.S. Department of Justice. The principal deputy assistant attorney general, responsible for overseeing the Antitrust Division, will be responsible for furthering the division’s dual mission of promoting economic competition through civil and criminal enforcement of the antitrust laws and providing guidance on antitrust laws and principles, including merger review divided up with the FTC.

While the future remains to be seen, past is prologue. Accordingly, our next articles will bring an in-depth assessment of the two presidential front-runner’s past statements, positions, experiences and actions in the antitrust and consumer protection arena, with an eye toward what their potential future administrations may hold. Of course, we will also report on any submissions to the American Antitrust Institute, an independent, nonprofit organization committed to promoting competition for the benefit of consumers through “vigorous use of antitrust,” which has traditionally invited presidential candidates to express their views on antitrust issues. Notably, the AAI has already begun publishing excerpts from its forthcoming 2016 Presidential Transition Report on Competition Policy, which makes policy recommendations to the next president, in line with the AAI’s mission.

Many questions regarding the candidates’ antitrust and consumer protection priorities are beginning to emerge. What might President Trump mean for mega-retailers and foreign-based corporations and even domestic corporations with overseas manufacturing facilities who he has already criticized? What could a Clinton administration mean for “pay-for-delay agreements” (in which manufacturers of brand-name drugs that face patent expiry pay generic companies to refrain from launching patent challenges and otherwise delay launching competing)? What will either front-runner do in the health care arena where hospital mergers and other corporate mergers have been hot-button issues at the FTC in particular? What do Trump or Clinton really mean for corporate America when the smoke clears? These and other related questions will be dissected in the coming months. Stay tuned. •

Carl W. Hittinger is a senior partner in Baker & Hostetler’s antitrust group and litigation group coordinator for the firm’s Philadelphia office. He concentrates his practice on complex commercial and civil rights trial and appellate litigation, with a particular emphasis on antitrust and unfair competition matters. He can be reached at 215-564-2898 or chittinger@bakerlaw.com. Julian D. Perlman is a senior associate in the firm’s litigation group, with a focus on complex commercial litigation, including antitrust litigation matters. He is resident in the firm’s New York City office, and his practice frequently brings him to Philadelphia, his hometown. He can be reached at 212-589-4629 or jperlman@bakerlaw.com.

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