FTC Commissioner Thomas B. Leary to Resign

Thomas B. Leary announced today that he will resign his position as Commissioner of the Federal Trade Commission, effective December 31, 2005. Commissioner Leary, a Republican, was nominated by President Clinton, and served for over six years.

“This has been a great job, and I cannot describe how grateful I am for the opportunity to play a part in the important work we do here,” Leary said in farewell remarks to Commission staff.

FTC Chairman Deborah Majoras said, “Tom Leary is a gentle giant in the antitrust world. His strong legal analysis and tenacity, asserted with the utmost grace and collegiality, have made a lasting imprint on this agency. He is a true friend, and I will greatly miss him.”

During his tenure, Leary wrote two unanimous adjudicative opinions on behalf of the Commission. The first opinion, In the Matter of Schering-Plough Corporation, (Docket No. 9297) (Dec. 2003), condemned an agreement between a brand and a generic pharmaceutical manufacturer to delay the entry of a generic drug in competition with a branded drug. The case raised complex issues at the intersection of antitrust and intellectual property law and the Hatch-Waxman Act, which have still not been finally resolved. The second opinion, In the Matter of North Texas Specialty Physicians, (Docket No. 9312) (Nov. 2005), addressed physician joint negotiation of fees. This was the first physician price-fixing case to be decided after a full administrative trial at the Commission in over twenty years, and the first to apply the Commission’s approach to horizontal restraints outlined in the Polygram Holding, Inc. opinion (Docket No. 9298) (July 2003).

Commissioner Leary is well known both within the Commission and to parties outside the Commission for his insightful and candid analysis of legal questions. He typically spoke informally without a script, but he did write and publish over thirty speeches and articles on both antitrust and consumer protection law issues, where he clearly and eloquently illuminated the relevant limiting principles of the law, and often raised new questions. A consistent theme was the inevitable uncertainty of predictions and the consequent “need to remain humble.” For example, in one of his most notable articles, The Significance of Variety in Antitrust Analysis, published in 2001, he wrote:

“With all the discussion of variety, in a number of different contexts over the years, it is noteworthy that we still know very little about it as an independent element of competition. The issue will be increasingly important as our economy shifts progressively further away from the assumptions of traditional economic
models . . . .”

He also tended to emphasize areas of agreement rather than areas of disagreement. In his article entitled, The Essential Stability of Merger Policy in the United States, published in 2002, he stated:

“[T]he core principles of merger policy have remained stable for the last twenty years, regardless of political shifts . . . . There still is an effort to assess effects in real markets, based on the best tools available. There have been evolutionary changes [in the antitrust analysis of mergers], but they are forward-looking and change was anticipated by those in charge of the antitrust agencies twenty years ago.”

Commissioner Leary worked firsthand to help achieve this stability in merger policy in his six years in office, serving with three different Chairmen, and with five other Commissioners. He worked tirelessly to achieve consensus among his fellow Commissioners, because of his strong belief in the importance of the collegial process of a bi-partisan independent agency. He was the first Republican to receive the annual Antitrust Achievement Award of the avowedly pro-enforcement American Antitrust Institute, and, in his June 2005 acceptance speech, he observed, “[t]here really is no such thing as a “Republican” or “Democratic” antitrust agenda today. People may have different views on the facts of individual cases for a variety of reasons, but there is a broad mainstream consensus on the basic approach to antitrust issues.”

Commissioner Leary also firmly believed in the interface between the agency’s two core missions – antitrust and consumer protection law. In his short comment titled Competition Law and Consumer Protection Law: Two Wings of the Same House, he remarked:

“[bo]th competition law and consumer protection law deal with distortions in the marketplace, which is supposed to be driven by the interaction of supply and demand. Antitrust offenses, like price fixing or exclusionary practices, distort the supply side because they restrict supply and elevate prices. Consumer protection offenses, like deceptive advertising, distort the demand side because they create the impression that a product or service is worth more than it really is. In other words, both sets of offenses can be analyzed in economic terms, and appreciation of this nexus will help to resolve some apparent tensions.”

Commissioner Leary was no stranger to antitrust law when he joined the Commission in November 1999. He brought to the agency over forty years of experience as a practicing antitrust attorney in the private sector. Leary had been a partner at Hogan & Hartson, in Washington, D.C., since 1983. Before becoming a partner at Hogan & Hartson, Leary was an Assistant General Counsel of General Motors, with overall responsibility for antitrust, consumer protection and commercial law matters. Before joining General Motors, he was a partner at White & Case in New York. Leary received his undergraduate degree in economics from Princeton University and a law degree from Harvard Law School, where he was an editor and an officer of the Harvard Law Review. He served as an Air Intelligence officer on active duty in the United States Navy from 1952-1955.

Information about the Federal Trade Commission is available from the FTC’s Web site at http://www.ftc.gov and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint in English or Spanish (bilingual counselors are available to take complaints), or to get free information on any of 150 consumer topics, call toll-free, 1-877-FTC-HELP (1-877-382-4357), or use the complaint form at http://www.ftc.gov. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.