Joshua Wright: FTC Nominee May Raise the Bar for Antitrust Challenges

September 14, 2012

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.

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