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FTC Seen Gaining Enforcement Power With New Commissioner

The U.S. Federal Trade Commission gained the power to pursue a more aggressive antitrust agenda after the agency added a fifth commissioner, giving Democrats a majority for the first time in more than a year.

Terrell McSweeny, who was previously an attorney with the Justice Department’s antitrust division and an adviser to Vice President Joe Biden, started at the commission yesterday, ending a split between two Democrats and two Republicans.

With a Democratic majority, FTC Chairwoman Edith Ramirez gains the ability to carry out a bolder agenda, said John Briggs, an antitrust lawyer at Axinn, Veltrop & Harkrider LLP in Washington.

“The chair hasn’t had that kind of power for as long as it’s been 2-2,” Briggs said in an interview. “We should expect to see a more aggressive agenda.”

McSweeny joins the FTC as merger activity is surging. The value of takeovers announced in 2014 hit the $1 trillion mark yesterday, reaching that level at the fastest pace in seven years, according to data compiled by Bloomberg.

Among deals is Comcast Corp.’s plan to buy Time Warner Cable Inc., a combination that would combine the two largest U.S. cable companies. Holcim Ltd. and Lafarge SA have agreed to merge to create the world’s largest cement maker.

Antitrust Enforcement

The FTC shares antitrust enforcement in the U.S. with the Justice Department. The agency last year won two Supreme Court cases over its antitrust enforcement, one involving patent settlements and another involving a hospital merger.

A Democratic majority doesn’t guarantee more enforcement actions will be filed. In January 2013, under former chairman Jon Leibowitz, also a Democrat, the agency voted 5-0 to close an antitrust investigation after 20 months into whether Google Inc. unfairly skewed search results to favor its own services.

The agency also enforces consumer-protection laws and is investigating nutrition company Herbalife Ltd., which hedge-fund manager Bill Ackman has accused of being a pyramid scheme.

Ramirez said in a statement that McSweeny’s “considerable experience in the law and public policy will be an asset to the agency as it continues to pursue its missions of protecting consumers and promoting competition.”

FTC spokesman Justin Cole said McSweeny was unavailable to comment about starting at the agency. The other FTC commissioners are Democrat Julie Brill and Republicans Maureen Ohlhausen and Joshua Wright.

Aggressive Agency

Before joining the FTC, McSweeny was chief counsel for competition policy and intergovernmental relations for the Justice Department’s antitrust division. She previously served as deputy assistant to the president and domestic policy adviser to the vice president.

McSweeny’s addition to the FTC creates the potential for a more aggressive agency, said Jonathan Kanter, an antitrust attorney at Cadwalader, Wickersham & Taft LLP in Washington. Democratic commissioners have tended to be more pro-enforcement than Republicans, he said.

“The party in power has the ability to bring a case even without bringing the opposite party on board,” Kanter said. “That does change the balance of power, and that’s the way the commission was designed.”

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