New Merger Review Legislation Released, Hearing Today

A draft of the “Standard Merger and Acquisitions Review Through Equal Rules Act of 2014” has been released.  The bill would align the FTC’s preliminary injunction standard in merger review cases with that of the DOJ, eliminate the ability of the FTC to challenge a merger through an administrative proceeding, and bring FTC final judgments under Tunney Act review.

A copy of the legislation may be found here.

The House Judiciary Committee will be holding a hearing on the bill at 1 pm today (details here).

posted by Anant Raut

This Week in Congress

Thursday, April 3rd @1:00pm
Hearing on the “Standard Merger and Acquisition Reviews Through Equal Rules Act of 2014”

On Thursday, the House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial and Administrative Law will hold a legislative hearing to examine the draft legislation mentioned above.  The legislation would purportedly impose the DOJ’s preliminary injunction standard in merger cases onto the FTC, and also limit the FTC’s use of administrative proceedings in merger reviews.

The confirmed witnesses are:

• Deborah Garza, Partner, Covington & Burling LLP
• Tad Lipsky, Partner, Latham & Watkins LLP
• Richard Parker, Partner, O’Melveny & Myers LLP

A link to the draft legislation, once available, will be posted.

2237 RHOB

posted by Anant Raut

“Patent Troll” Legislation Introduced

Yesterday, Senator McKaskill of Kansas introduced legislation that would provide the FTC with greater oversight authority over “patent trolls,” requiring that their demand letters to alleged infringers include certain disclosure requirements. An article describing the legislation, and providing a link to the bill, can be accessed at the link below:

http://www.koamtv.com/story/24843480/senator-introduces-bill-to-crack-down-on-patent-trolls

Posted by Jim Burns

Congress Scrutinizing Comcast-TWC

The proposed merger of Comcast and Time Warner Cable, announced last week, is already drawing scrutiny and opposition from members of Congress, The Hill reports.  House Judiciary Committee Chairman Bob Goodlatte (R-VA) and antitrust subcommittee Chairman Spencer Bachus (R-AL) have announced plans to hold an oversight hearing (see press release here).

Senate Judiciary Committee Chairman Patrick Leahy (D-VT) released a noncommittal statement indicating that he would be watching the response of the antitrust authorities and the Federal Communications Commission.  Fellow Senator Al Franken (D-MN), who was quite publicly objected to AT&T’s failed acquisition of T-Mobile, has been far more vocal in his opposition, urging FCC Chairman Wheeler, Federal Trade Commission Chairwoman Ramirez, and Attorney General Holder to oppose further concentration in the industry.

The full article may be found here.

posted by Anant Raut

McSweeny Reapproved by Committee, Awaits Senate Vote

Last night, in a brief executive session of the Senate Commerce Committee, President Obama’s nominee for FTC Commissioner, Terrell McSweeny, was voted out of committee.  She now awaits a vote by the full Senate to be confirmed as FTC Commissioner.  Majority Leader Reid (D-NV) has not given any public indication as to how soon that vote may occur.

posted by Anant Raut

This Week in Congress

Monday, Jan. 14th

Executive Session
Senate Commerce Committee

Today, the Senate Commerce Committee will hold an executive session to consider renominations from the first session of the 113th Congress.  Among the renominations to be considered will be Terrell McSweeny for Commissioner of the Federal Trade Commission.

S-214 @5:40 p.m.

posted by Anant Raut

2014 for McSweeny

The Senate closed for business yesterday without confirming FTC Commissioner nominee Terrell McSweeny.  As no deal was reached between the Democrats and Republicans regarding the bulk of the pending nominees, Ms. McSweeny will have to start the nomination process over again for the second session of the 113th Congress next calendar year.  However, given that she is considered a noncontroversial pick, there is reason to believe that she, along with a number of the other pending nominees from this year, will move quickly through the committee process and be eligible for Senate confirmation before spring.

posted by Anant Raut

McSweeny Nom May Stay Pending Into 2014

Politico reports today that Senate Majority Leader Harry Reid (D-NV) is threatening to keep the Senate in session through Christmas to confirm a slew of Presidential appointees.  However, he has signaled a willingness to limit it to a quick confirmation of four nominees (Alejandro Mayorkas, Dep Sec DHS; John Koskinenen, Commissioner IRS; Brian Davis, FL district court; Janet Yellen, Chairman Federal Reserve), provided that the remaining executive and judicial nominees stay pending in 2014.

Under normal circumstances, with the expiration of the first session of the 113th Congress at the end of the calendar year, any executive and judicial nominees who had not yet been confirmed by the full Senate would have to start the process over again next year, and once again go through the committee confirmation process.  This would include Terrell McSweeny, nominated for the next Commissioner of the Federal Trade Commission.  As has been previously reported on this blog, McSweeny is considered a noncontroversial nominee, and in other Congresses would have been voted through by unanimous consent (UC) of the Senate.  Since Reid’s invocation of the “nuclear option,” Senate Republicans have twice rejected a slate of UC candidates proposed by the Democrats, which may have included McSweeny.

Should Republicans agree to Reid’s deal, then even if McSweeny is not confirmed before year’s end, she would be eligible for confirmation by the Senate as soon as it is back in session next year.

posted by Anant Raut

Budget Agreement May Give FTC, DOJ Breathing Room

The Washington Post reports today that the bipartisan budget agreement reached earlier this week is likely to pass Congress.  Late Tuesday evening, Rep. Paul Ryan (R-WI), Chairman of the House Budget Committee, and Sen. Patty Murray (D-WA), Chairman of the Senate Budget Committee, reached a bipartisan, bicameral budget agreement that, if passed, may provide some relief to the FTC and DOJ Antitrust Division from the continuing effects of the sequestration.

Currently, the antitrust enforcement agencies are operating under the budget cuts mandated by the sequestration.  As the law stands, even larger cuts were scheduled to kick in across the board next year.  Instead, the budget deal would restore approximately half of the non-defense discretionary spending that would have automatically been cut.

The budget of the antitrust agencies is appropriated annually as discretionary spending.  WaPo reports that the budget deal is expected to pass the House this week and the Senate next week, and appropriations committees in both chambers would work over the holidays to prepare funding bills for individual agencies.

posted by Anant Raut

McSweeny Confirmation Before Year’s End?

As reported previously on this blog, Terrell McSweeny, voted out of Senate Commerce Committee earlier this fall, remains one step away from confirmation as Commissioner of the Federal Trade Commission, requiring a vote by the full U.S. Senate.  McSweeny is not considered a controversial candidate, and is widely expected to receive bipartisan support.  She will most likely be confirmed by unanimous consent (UC).

Last month, a slate of candidates, which may have included McSweeny, was put together for a UC on the same day that Senator Reid invoked the so-called nuclear option (changing the confirmation requirement to a simple majority).  Republicans objected to the historic rule change, and the UC slate was never voted upon.

On Monday, a slate of UC candidates was again prepared for a vote (which may have included McSweeny). Republicans, still objecting to the change in voting rules, refused to go along, and the nominees never made it to the floor of the Senate.

Since Monday, the Democrats have been invoking the simple majority rules to confirm a handful of high-profile candidates, such as Rep. Mel Watt (D-NC) as the new head of the Federal Housing Finance Agency.

Republicans retain the ability to delay each confirmation vote with 30 hours of debate.  While they may do so with some of the remaining high-profile candidates, a number of Hill observers note that some Republicans have already voted in favor of  the nominees this week, and believe that the Republicans will agree to pass a slate of non-controversial candidate in the final days of voting next week before the Christmas recess, which, again, may include McSweeny.

posted by Anant Raut