Antitrust-Related Recent Developments: Terrell McSweeny Confirmed as FTC Commissioner, Congress Holds Hearings and FTC/DOJ Policy Statement on Sharing of Cybersecurity Information

by Akin Gump Strauss Hauer & Feld LLP
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On April 9, 2014, the U.S. Senate confirmed Terrell McSweeny to serve as FTC Commissioner. Commissioner McSweeny will join Commissioners Edith Ramirez and Julie Brill as the third Democratic member of the five-member Federal Trade Commission (Commission). Commissioners Maureen Ohlhausen and Joshua Wright are the two Republicans. The appointment reduces the possibility of the Commission abstaining from acting as a result of a 2-2 split during its decision-making process.

Commissioner McSweeny has spent most of her career in public service. Her recent appointments include serving as Chief Counsel for Competition Policy and Intergovernmental Relations at the Department of Justice’s Antitrust Division, as a domestic policy adviser to Vice President Joe Biden and as a deputy assistant to President Barack Obama. Commissioner McSweeny has developed a reputation as an insightful and pragmatic problem-solver during her career in public service.

Her agenda as a commissioner is yet to be seen. She has expressed interest in privacy and consumer protection issues, but unlike other recently-appointed commissioners, her views on antitrust enforcement are largely unknown. In any event, Commissioner McSweeny’s background in health care policy and intellectual property should be helpful in her new role. The Commission has been extremely active in the health care and pharmaceutical industries in recent years, and the two sectors have accounted for approximately 46 percent of the Commission’s enforcement actions since 2009. Intellectual property has also been a recent focus for the Commission, which is currently involved in reevaluating federal competition policies dealing with patent assertion entities, sometimes referred to as “patent trolls.”

Commissioner McSweeny’s confirmation is not the only recent development in Congress on the antitrust front. Last week, the House Judiciary Committee Subcommittee on Regulatory Reform, Commercial and Antitrust Law held a hearing on the Standard Merger and Acquisition Reviews through Equal Rules (“SMARTER”) Act of 2014, which would require the Commission to clear the same legal hurdles as the Department of Justice before blocking a merger. The legislation would also do away with the Commission’s administrative process for merger challenges. And on April 9, 2014, the Senate Judiciary Committee held a hearing on the proposed merger of Comcast and Time Warner Cable. The hearing highlighted the significant role that the transaction may play with respect to Internet access and data transmission rates, television programming, and consumer pricing for cable television and high speed internet services.

One other antitrust development of note—on April 11, 2014, the Department of Justice (DOJ) and the Commission announced their Antitrust Policy Statement on Sharing of Cybersecurity Information. Given the strong national interest in improving cybersecurity, and the recognizing the benefits that derive from sharing information on cybersecurity threats, the agencies seek to assure that the antitrust laws should not impede legitimate cybersecurity information sharing. Not surprisingly, the guidance indicates that the agencies will focus on the nature of the information exchanged. Noting that cybersecurity information tends to be technical, the agencies cite with approval and essentially reaffirm the position expressed by the DOJ in an October 2000 business review letter to the Electric Power Research Institute, Inc. In that letter, the DOJ stated that “[a]s long as the information exchanged is limited…to physical and cyber-security issues, the proposed interdictions on price, purchasing and future product innovation discussions should be sufficient to avoid any threats to competition. Indeed, to the extent that the proposed information exchanges result in more efficient means of reducing cyber-security costs, and such savings redound to the benefit of consumers, the information exchanges could be procompetitive in effect.”

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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