Ohlhausen Restates Support for Legislation to Harmonize DOJ, FTC Antitrust Review Process
FTC Acting Chairman Maureen Ohlhausen said the commission will continue to "aggressively" challenge anticompetitive mergers and exclusionary conduct, but added there's room for improvement. In prepared remarks to the Global Competition Review annual antitrust forum Friday, Ohlhausen said she supports…
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the Standard Merger and Acquisition Reviews Through Equal Rules (Smarter) Act, which seeks to eliminate disparities in the antitrust review process between DOJ and the FTC. The House passed its version last year but the measure never reached the Senate floor (see 1702010069). The bill is expected to be reintroduced this year. Ohlhausen said the bill "would subject the FTC and DOJ to the same standard in seeking preliminary injunctions, and bar the FTC from challenging unconsummated mergers" in the commission's Part 3 process, which permits the commission to challenge alleged Section 5 violations via administrative litigation. "A merging company's prospects should not depend on which agency reviews its [Hart-Scott-Rodino] filing," she said. The commission also got its Part 3 priorities "backwards" under the prior administration, favoring going to federal court to seek disgorgement rather than use administrative litigation in some conduct cases, she said. Ohlhausen said she would like the FTC to explore new guidance on disgorgement, as well as work "to define and confine" anticompetitive effects from state government action. "From one perspective, federal antitrust enforcement can make governments be politically accountable for state-imposed restrictions on competition," she said. But she added it doesn't have to be adversarial and the commission can work with state and local governments to reduce barriers to competition.