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Economist's emphasis on empirical evidence and
economic theory stands in contrast to outgoing Commissioner
Rosch's more litigation-oriented approach.
President Barack Obama has nominated Joshua Wright to serve a
seven-year term on the Federal Trade Commission (FTC or the
Commission). Wright would replace Commissioner J. Thomas Rosch,
whose term will expire at the end of September. Although both
Wright and Rosch are Republicans, the change in the composition of
the Commission could affect the number and type of enforcement
actions that the FTC initiates.
Wright, who is a professor at George Mason University School of
Law, holds both a Ph.D. in economics and a J.D. As an economist, he
has been identified as a member of the "Chicago School."
Chicago School economists believe that over-enforcement of the
antitrust laws can do the economy more harm than good and therefore
the government should only initiate an enforcement action when
anticompetitive effects are clear. Wright (who would be the only
economist on the Commission) has questioned the wisdom of some of
the FTC's ongoing investigations and has criticized what he
views as overly aggressive antitrust enforcement through hastily
pursued actions against dominant companies. As a Commissioner, he
is likely to encourage greater emphasis on empirical evidence and
economic theory prior to bringing an enforcement action.
Wright's approach is likely to be in stark contrast to that
of outgoing Commissioner Rosch, who has often been willing (along
with the three Democrats on the Commission) to support the filing
of enforcement actions in close cases. Commissioner Rosch's
reputation as an aggressive enforcer grew from his 40 years of
experience as a litigator and trial lawyer. This experience has led
him to focus on practical issues, such as the likelihood that the
Commission would prevail in litigation, and has provided a unique
perspective on the appropriate enforcement role for the FTC. During
his term on the Commission, he openly favored (1) short
pre-complaint investigations; (2) a relaxed view of the
Commission's "reason to believe that a violation of the
law has occurred" standard for filing an initial complaint;
(3) compressed, post-complaint administrative litigation timelines;
and (4) wide deference to the Commission to determine the ultimate
outcome of enforcement actions as an expert antitrust body.
Wright must be confirmed by the U.S. Senate. A confirmation vote
is unlikely before the election in November.
Copyright 2012. Morgan, Lewis & Bockius LLP. All Rights
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