If indeed they’re right, they’ll now have to plead mercy to Richard Feinstein, who on Tuesday was appointed director of the bureau of competition for the agency. Feinstein has lots of experience in both the public and private sectors. Most recently, he’s been a partner at Boies, Schiller & Flexner, where he was part of the team that represented American Express in its historic antitrust case against MasterCard and Visa, which resulted in $4 billion in settlements. Before Boies Schiller, Feinstein served as an assistant director in the FTC’s competition bureau. He’s also held positions at the firm known today as McKenna Long & Aldridge and the antitrust division of the Justice Department.
From what Feinstein told the Litigation Daily in an interview Tuesday afternoon, it doesn’t sound like he will be any less aggressive an enforcer than his predecessors. We asked him specifically about the Whole Foods opinion. He said that it was a “reaffirmation” of what the FTC has always believed it needs to show to obtain a preliminary injunction.
But under Feinstein, we may see more cooperation between the Justice Department and the FTC on competition matters. Historically, Feinstein said, there’s been a rivalry between the two. But now, each side is led by people who have experience at both places. Feinstein worked at the antitrust division in the 1980s, and Christine Varney, a Hogan & Hartson partner who has been nominated to lead the antitrust division, used to be an FTC commissioner. “I would hope that these agencies will be able to continue to serve the interest that they were both created to do, which is to promote competition,” Feinstein said.
FTC chairman Jon Leibowitz told us that Feinstein’s experience at Boies Schiller–in which he not only defended antitrust actions, but also brought them–was a factor in his appointment. “As we were thinking about staff hires, there were a number of people under consideration,” Leibowitz said. “I knew Rich might be interested. We reached out to him….We were delighted and fortunate enough to lure him back.”
Leibowitz also said that he doesn’t expect a major shift in the agency’s priorities. He said the FTC will continue to pursue aggressively pharmaceutical companies that pay competitors to stay out of certain markets. The agency will also continue an energetic merger enforcement policy. “At this agency, it’ll be about some change, but a lot of continuity,” said Leibowitz. “Rich’s going to be comfortable with the commission’s agenda going forward but I think he’s going to add to it.”