Insights

Antitrust Alert: New U.S. Federal Trade Commissioner Confirmed

Yesterday the United States Senate confirmed Joshua D. Wright to serve as a Commissioner on the Federal Trade Commission, filling one of the two seats reserved for nominees not from the President's party.  He should be sworn in shortly.  Wright is a well-respected antitrust scholar and will be the first Commissioner who is both lawyer and economist.  While he is expected to bring a more conservative approach to antitrust enforcement than his predecessor, Commissioner Thomas Rosch, Wright will be joining a pro-enforcement majority at the Commission that will continue during President Obama's second term.

Wright, a Professor of Law at George Mason University School of Law, has received accolades from colleagues and antitrust experts for his extensive academic scholarship and deep understanding of antitrust law and economics.  He also serves as senior adjunct fellow at the non-partisan technology think tank, TechFreedom, and as a senior consultant for Charles River Associates.  He is the co-editor of the Supreme Court Economic Review, and serves on the editorial board of the Antitrust Law Journal, Global Competition Policy, and Competition Policy International.  In addition to his academic and private sector experience, Wright served as the inaugural scholar in residence at the Federal Trade Commission's Bureau of Competition from January 2007 to July 2008.  Having received funding from Google for some of his academic research, Wright pledged that for two years he will not to participate in any FTC actions involving the company.

Wright's confirmation comes after his nomination by President Barack Obama in September 2012.  He will replace outgoing Commissioner Rosch, whose term expired in September, but who has remained as a Commissioner through Wright's confirmation process.  Despite being a Republican, during his seven-year tenure, Rosch emerged as the swing vote on numerous enforcement actions and played a key role in defining a more aggressive enforcement program at the Federal Trade Commission in both merger and conduct matters.  Rosch became an outspoken proponent of expanding the use of Section 5 of the FTC Act, which prohibits “unfair competition.”

Wright is expected to bring a conservative, empirical approach to his role as Commissioner.  He is more likely to resist expansion of the agency's powers to target companies for antitrust violations.  At his December 4 confirmation hearing, some Senators expressed concern that Wright's academic writings suggest he opposes more regulation and enforcement.  Wright responded that his primary concern is ensuring that the agency protects consumers.  He acknowledged the importance of rules and regulations, but stated his belief that “markets are a powerful institution that operate for consumers.”  He also expressed his concern that “amorphous or vague” legal standards can create uncertainly and be costly for businesses and in turn consumers. 

Wright's relatively conservative enforcement mindset and focus on economic principles will sometimes contrast with the Democratic majority of current Commissioners, Chairman Jon Leibowitz and Commissioners Julie Brill and Edith Ramirez.  However, in the Republican minority on the Commission, along with Commissioner Maureen Ohlhausen, Commissioner Wright presence on the FTC should not be expected to reverse the pro-enforcement trend at the FTC.  Chairman Leibowitz is expected to announce his departure shortly, but there is every reason to expect his seat will be taken by someone also with a strong enforcement bent. 

Lawyer Contacts 

For more information, please contact your principal Jones Day representative or either of the lawyers listed below.

David P. Wales
Washington
+1.202.879.5451
dpwales@jonesday.com

Kenneth W. Field
Washington
+1.202.879.3963
kfield@jonesday.com

Jones Day prepares summaries of significant antitrust enforcement, litigation, and policy events as a service to clients and interested readers, to provide timely insight on antitrust and competition law developments relevant to business, but not as legal advice on any specific matter.  Please visit our Publication Request form to add your name to our distribution list.

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