"He continued to pursue this in the courts even though the FTC lost over and over again, until he succeeded in obtaining a circuit split," said Keeley, noting that the U.S. Supreme Court will hear oral arguments in the FTC's case next month. "I found his persistence notable in keeping the issue alive in courts and Congress."
Sen. Patrick Leahy, D - Vt., who chairs the Senate Judiciary Committee, recognized Leibowitz’s efforts on pay-for-delay in a statement. “Jon worked diligently both with the Judiciary Committee and in the courts to stop the anticompetitive use of patent litigation settlements by drug companies,” he said. “His efforts will speed generic competition and benefit consumers through lower healthcare costs.”
Jones Day antitrust head David Wales agreed that Leibowitz will be remembered for his "unwavering assault" on pay-for-delay. He continued, "Some have criticized Jon for too much horse trading and compromising antitrust principles in big matters, but having worked with Jon for several years, I know he always followed his internal moral compass and tried to do what he thought was the right thing," Wales said.
O’Melveny & Myers partner Richard Parket praised the commission under Leibowitz for doing "an excellent job on both the consumer protection and antitrust sides of the house. He's had an outstanding tenure and the commission as a whole should take pride in what they've done the last four years."
In the past, Parker, who previously served as director of the Bureau of Competition, has been mentioned as a possible successor, along with current Bureau of Economics head Howard Shelanski; Philip Weiser, the dean of the University of Colorado Law School who is a former senior White House advisor and DOJ antitrust official; as well as Leslie Overton, a deputy assistant attorney general in the Antitrust Division.
However, many antitrust lawyers think the two current Democratic FTC commissioners, Julie Brill and Edith Ramirez, are the leading candidates. Brill, formerly the senior deputy attorney general and chief of consumer protection and antitrust for the North Carolina Department of Justice, is known of her work in privacy protection and has a reputation for favoring vigorous enforcement.
Ramirez, a former partner with Quinn Emanuel Urquhart & Sullivan, is regarded as brilliant and somewhat reserved. She went to law school at Harvard with President Barack Obama and worked with him on the law review (fellow law review member Julius Genachowski has served as head of the Federal Communications Commission since June 2009).
Leibowitz's departure will leave the FTC with four commissioners, two Democrats and two Republicans. Until the fifth vacancy is filled, "One concern is the prospect of stalemate," said Hogan Lovells antitrust partner Janet McDavid. "The FTC requires an affirmative vote of the commission to act. If the vote is split 2-2, they can do nothing."
It's been an issue in the past. For example, the FTC deadlocked 2-2 in the early 1990s over whether to bring antitrust action against Microsoft Corp. As a result, the matter was referred to the U.S. Department of Justice, which brought the landmark case. And in 2001, the commission split 2-2 on whether to block General Mills proposed $5.4 billion acquisition of The Pillsbury Co., which meant the deal went through, albeit with voluntary remedies implemented by the parties.
Still, given that President Obama has cabinet level vacancies including the secretaries of the Treasury, Transportation, and Labor to fill, the FTC may not be at the top of his list.
