Robert Pitofsky (Susana Raab for The American Lawyer)
When Robert Pitofsky took the reins of the Federal Trade Commission two decades ago, robust antitrust enforcement wasn’t exactly the rage. Through the 1980s and into the next decade, the FTC’s top antitrust cops largely stood by as a wave of corporate buyouts and takeovers left U.S. industry more and more concentrated.
Then, in 1995, Pitofsky stepped in as FTC chair. The former Georgetown University Law Center dean had done two previous tours at the agency, as head of its consumer protection bureau and as an FTC commissioner. With his calm, buttoned-down demeanor, he was no radical. But as Georgetown antitrust professor Steven Salop recalls, Pitofsky also wasn’t one “to just sit around and chew gum.” Unlike his Reagan-era predecessors, he believed that the FTC’s antitrust enforcers had a critical role. “He really reinvigorated the place,” says Salop.
One example: the FTC’s move in 1997 to stop the proposed combination of office supply giants Staples and Office Depot. Former FTC commissioner Christine Varney recalls that the action sparked strong opposition inside the agency, given that the two companies controlled less than 8 percent of the overall office supplies market. But with Pitofsky’s backing, FTC lawyers marshaled strong evidence that the office supplies superstores constituted a “unique market segment” and that the merger would hurt consumers. In the end, U.S. District Judge Thomas Hogan blocked the deal, handing the agency its first major win in a merger case in many years.
The next year FTC lawyers persuaded the courts to block separate plans by the country’s two leading drug wholesalers, McKesson Corp. and Cardinal Health, to buy out smaller rivals. Plus they went after a host of companies engaged in anti-competitive conduct, and clinched another key court win in an action against retail giant Toys R Us, charging that the company was pressuring toy makers to curtail sales of their wares at Costco and other discount clubs.
At the same time, Pitofsky got an early jump on the consumer protection issues that the Internet was starting to raise. At his behest, the agency’s consumer protection bureau began policing e-commerce. It also held public workshops and hearings on online privacy, and established new rules to safeguard the identities of children online.
“He had one of the most successful tenures of any FTC chair across the board,” says Bill Baer, who oversaw the agency’s competition bureau under Pitofsky and now heads the U.S. Justice Department’s antitrust enforcement division.
Pitofsky, now 85, didn’t just make his mark in public service. During his long career at Georgetown, he published a leading antitrust casebook and numerous groundbreaking articles. Pitofsky also built a sizeable fan club at Arnold & Porter, where he spent more than three decades as of counsel and became a go-to adviser for several generations of antitrust lawyers.
“He was the person anyone could go to to bounce ideas off,” says Jonathan Gleklen, who came to the firm as a summer associate in 1992 and now chairs its antitrust group. “He was the wise man of the practice.”