Commissioner Ohlhausen Delivers Remarks on FTC Antitrust Policy in the New Administration | Practical Law

Commissioner Ohlhausen Delivers Remarks on FTC Antitrust Policy in the New Administration | Practical Law

Federal Trade Commission (FTC) Commissioner Maureen Ohlhausen delivered remarks on how the FTC should pursue antitrust policy under President Trump. Commissioner Ohlhausen stated that the FTC should operate under a more conservative antitrust policy going forward that reduces regulatory burdens on companies and better protects intellectual property rights.

Commissioner Ohlhausen Delivers Remarks on FTC Antitrust Policy in the New Administration

by Practical Law Antitrust
Published on 25 Jan 2017 • USA (National/Federal)
Federal Trade Commission (FTC) Commissioner Maureen Ohlhausen delivered remarks on how the FTC should pursue antitrust policy under President Trump. Commissioner Ohlhausen stated that the FTC should operate under a more conservative antitrust policy going forward that reduces regulatory burdens on companies and better protects intellectual property rights.
On January 24, 2017, FTC Commissioner Maureen Ohlhausen delivered remarks at The Heritage Foundation on:
  • The direction the FTC's antitrust policy should take under the new administration.
  • What the FTC did right and wrong during the Obama administration.
  • What the FTC failed to do or could have improved on during the Obama administration.
Commissioner Ohlhausen signaled that under the new administration, the FTC should take a more conservative approach to what is considered anticompetitive conduct.

FTC Actions Under the Obama Administration

Commissioner Ohlhausen stated that though some FTC decisions during the Obama administration disregarded sound economics, the FTC did succeed in some areas. In particular, Commissioner Ohlhausen approved of the FTC's actions to protect competition in the healthcare industry, including by challenging:
  • Pay-for-delay agreements.
  • Anticompetitive hospital mergers.
Commissioner Ohlhausen also supported the FTC's efforts to prosecute potential abuses of government processes, including when state regulatory boards include active market participants (see Legal Update, Supreme Court Rules that State Board of Dental Examiners Not Protected by State-Action Antitrust Immunity).
Commissioner Ohlhausen explained that where she sometimes would have dissented with her Democratic colleagues, she voted with the majority to yield a stronger outcome. For example, Commissioner Ohlhausen supported the FTC's report on Patent Assertion Entities (PAEs) because:
  • It was a case study that provided empirical insights to help make more effective policy.
  • The study recognized that infringement litigation was essential to protect patent rights.
  • The proposed reforms were modest and mostly limited to procedural changes that already exist in many courts faced with patent challenges.
Commissioner Ohlhausen stated that she also supported the recent joint reports with the DOJ on IP licensing and international cooperation (see Legal Updates, FTC and DOJ Issue Updated Antitrust Guidelines for IP Licensing and DOJ and FTC Issue Updated Antitrust Guidelines for International Enforcement and Cooperation). With respect to the IP guidelines, Commissioner Ohlhausen was pleased that the guidelines:
  • Stated that antitrust laws do not generally impose liability on a company for a unilateral refusal to deal.
  • Did not include:
    • any references to standard-essential patents (SEPs) or PAEs; or
    • limits on injunctive relief.
With respect to the international guidelines, Commissioner Ohlhausen was satisfied with the guidelines' limits on extraterritorial remedies.

The FTC Under the Trump Administration

Commissioner Ohlhausen explained that there are some areas where the FTC should correct its course. She explained that under the new administration, the FTC should:
  • Use more caution before litigating and making investigation decisions, including giving more consideration to the private and social repercussions of enforcement decisions.
  • Narrow the scope and expense of compulsory processes and Second Requests in merger reviews, especially for third parties.
  • Give more protection to IP rights, including by supporting patent owners' right to seek injunctive relief against unlicensed infringers.
  • Further build on work to prosecute abuses of the government process, as in North Carolina State Board of Dental Examiners v. FTC and FTC v. Phoebe Putney (see Legal Update, FTC Seeks New Remedy in Phoebe Putney Hospital Merger Case).
Commissioner Ohlhausen's remarks are among the first by a current antitrust official to shed light on what antitrust enforcement policy is likely to look like during the Trump administration. The FTC will have three vacancies once Commissioner Edith Ramirez resigns on February 10, 2017. Trump must nominate at least one Democrat to fill the vacancies, which would give Republicans a 3-2 majority on the Commission.