FTC on the Hunt for Cases to Challenge Unfair Conduct

Federal Trade Commission attorneys are looking for more cases to challenge companies’ anticompetitive conduct, an official said April 13.

“We’re open for business and we’re looking for cases,” said Bruce Hoffman, who heads the FTC’s division enforcing competition policy, at the American Bar Association’s annual antitrust conference in Washington. “My phone number is pretty easy to find.”

FTC has the authority to bring civil charges against companies that engage in unlawful anticompetitive conduct like unfair pricing or sham lawsuits to squeeze out rivals. The Justice Department can bring both civil claims and criminal charges against that type of conduct and has several ongoing investigations against price fixing cartels.

“It’s harder for us to find cases,” Hoffman said. “We don’t have wiretaps. We don’t have the FBI.”

Both the FTC and the DOJ investigate mergers on antitrust grounds, but lawsuits challenging those deals usually spring from the corporate filings about the transactions required by law. When it comes to cracking down on anticompetitive conduct, however, the agencies must rely on complaints from consumers or whistleblowers. The DOJ can offer leniency to the first company that comes forward to admit to a price-fixing cartel, but the FTC doesn’t have that ability.

The FTC has brought about twice as many cases involving mergers as on anticompetitive conduct. The agency challenged 23 mergers in fiscal 2017 and required remedies in 13 others, acting FTC chairman Maureen Ohlhausen said at the conference. It brought nine actions challenging conduct in the same year.

This year, the FTC so far has challenged 12 mergers on antitrust grounds and brought two other challenges based on conduct, she said.

The FTC has brought a number of cases in the pharmaceutical industry where brand-name drug companies use an array of tactics to delay generic competition for various drugs. For example, the agency charged generic drugmaker Impax Laboratories Inc. for allegedly accepting more than $100 million to delay its release of a generic version of an opioid pain medication. The brand drugmaker in that exchange, Endo Pharmaceuticals Inc., settled with the FTC in January 2017.

This week, the FTC also filed an administrative complaint against the Louisiana Real Estate Appraisers Board alleging that the group is unlawfully restraining price competition for home appraisals.

To contact the reporter on this story: Fawn Johnson in
Washington at fjohnson@bloomberglaw.com

To contact the editor responsible for this story: Susan
Jenkins at sjenkins@bloomberglaw.com

Topics

Litigation, FTC