X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
One is a consummate antitrust lawyer, with 40 years of law firm and in-house experience. The other is a former fighter pilot who survived a North Vietnamese prisoner of war camp and went on to direct financial assistance programs during the Ronald Reagan administration. In many respects, Thomas Leary, 69, and Orson Swindle, 63, are very different men. But the two share something big — both are Republican members of the Federal Trade Commission, and in all likelihood, one will emerge as the next chairman of the FTC, at least on an interim basis. Agency-watchers agree that the incongruously named Swindle, who was imprisoned as a POW with Sen. John McCain, R-Ariz., has a slight edge over the more moderate Leary. “Swindle is not an old-line antitruster at all. He’s more of a knee-jerk anti-regulatory person, and would be far less inclined to use government power to shape or reshape an industry,” says Albert Foer of the American Antitrust Institute. “Leary is extremely well-respected [by the bar]. He’s a Republican, but in the classic Republican mode of believing antitrust is important in making capitalism work.” Current Chairman Robert Pitofsky plans to stay on at the FTC as a commissioner until his term runs out in September, according to an agency spokesman. That means that for the next nine months, Democrats will retain their 3-2 majority, and President-elect George W. Bush will have to wait to name a new member to the commission. What Bush can do is appoint one of the current Republican commissioners to be chairman on an acting or permanent basis. A less likely scenario is for him to keep Pitofsky on as chairman, as President Bill Clinton did with Chair Janet Steiger, a moderate Republican who continued to head the agency for more than two years after Clinton’s election. The job is a powerful one. The chair picks the agency’s senior staff, including the general counsel and the directors of congressional affairs, public affairs, and the bureaus of economics, competition, and consumer protection. So far, neither Swindle nor Leary has heard a peep from the president-elect. “I’ve had no conversations with the Bush administration,” says Swindle. “I’ve expressed no aspirations [for the job]. I’ve expressed no interest.” Adds Leary: “I really don’t know what the incoming administration wants to do … . Antitrust issues were not in the forefront of the campaign.” Swindle, who is not a lawyer but holds an M.B.A. from Florida State University, headed Ronald Reagan’s 1980 campaign in Georgia and went on to serve as assistant secretary of commerce for development. He was also the first national leader of United We Stand, Ross Perot’s 1992 campaign organization that became the Reform Party. In December 1997, Swindle was sworn in as an FTC commissioner. “I came to it with a great deal of skepticism,” Swindle says. To him, the mission of the agency is “to enforce some basic tenets of free and fair competition, as opposed to trying to create new laws and new interpretations.” He has been particularly outspoken on issues related to Internet privacy and vigorously opposed the commission majority’s recommendation last May for new legislation to protect consumer privacy online. “The majority abandons a self-regulatory approach in favor of extensive government regulation, despite continued progress in self-regulation,” he wrote in a 27-page dissent, calling the move “a troubling devolution of power from our elected officials to unelected bureaucrats.” He also opposed certain conditions that his colleagues placed on the merger between BP and Amoco in 1998, and in 1999, he was against forcing Exxon and Mobil to divest retail gasoline stations in nonconcentrated markets. In addition, he voted against the 1999 consent order settling monopoly charges against the Intel Corp., writing that he was “unpersuaded that the conduct at issue in this case demonstrably threatened to harm the consuming public.” Still, Swindle is a popular figure within the FTC. “He didn’t come in with an antitrust background, but he has been a hard worker and a quick study,” says Willard Tom, the former deputy director of the Bureau of Competition who departed last spring to join the Washington, D.C., office of Morgan, Lewis & Bockius as a partner. “He’s just a delightful person, always courteous to the staff and outside counsel.” STRIKING A BALANCE Perhaps the biggest difference between Swindle and Leary is background. An alumnus of Harvard Law School (where he was editor of the law review), Leary was a partner at Hogan & Hartson from 1983 until he joined the FTC in November 1999. Before that, he was assistant general counsel of General Motors, with responsibility for antitrust and commercial law matters. He has devoted his career to antitrust theory and practice, not politics. “I’ve never been a particularly partisan person,” he says. “I’ve never been actively involved in political campaigns.” As an FTC commissioner, Leary is known for his thoughtful and conciliatory approach to problems. “I personally find that a lot of our cases are hard — quite frankly, much harder than I expected them to be on the basis of my experience in the private sector, when it was not my job to strike balances but rather to advocate a point of view,” he said in a November 2000 speech to a conference sponsored by an economic consulting firm. At the FTC, Leary has been less prone than Swindle to dissent or issue separate statements. In an interview, he says he is happiest when the vote is 5-0. “I really think it’s good for the agency,” he says. Still, Swindle and Leary have frequently united in opposition to the Democratic majority. Both were against seeking a preliminary injunction to block BP Amoco and Arco’s merger bid. Both opposed the way the majority dealt with a price discrimination case against spice maker McCormick & Co. And both had objections (albeit different ones) to the online privacy report. In one instance, Leary was the lone dissenter. He voted against the November 2000 settlement with Mylan Laboratories — which included a record-breaking $100 million penalty from disgorgement of profits — out of concern that it might “create an undesirable precedent for antitrust enforcement at both the state and the federal levels.” Joe Sims, an antitrust partner in the Washington, D.C., office of Jones, Day, Reavis & Pogue, had ample opportunity to deal with Swindle and Leary recently as America Online’s lawyer in its merger with Time Warner. “It’s not clear to me there would be any dramatic difference between the two of them, except at the margins,” he says. “Pitofsky is more interventionist than either Leary or Swindle.” Still, Sims and other antitrust lawyers say that regardless of who gets the nod as the next chairman, a sea change in antitrust outlook, such as the one that occurred between the Carter and Reagan administrations, is unlikely. At most, they predict, the agency may become less adversarial in the merger pre-investigation stage, give vertical mergers less scrutiny, and make less expansive use of the per se doctrine in defining antitrust violations. Nor does Leary see a major upheaval on the horizon. “I do not perceive a vast ideological gulf between mainstream Republicans and mainstream Democrats today on antitrust and consumer protection issues,” he says. “The differences, where we’ve had them, more often involve views on particular facts in particular cases. I don’t think the method of analysis is different.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.