Critic of FTC Qualcomm Suit Named Agency General Counsel (1)

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By Alexei Alexis

Conservative antitrust scholar Alden Abbott has been named acting general counsel of the Federal Trade Commission, the agency said April 2.

Abbott had served since 2014 as deputy director of the right-leaning Heritage Foundation’s Meese Center for Legal and Judicial Studies. He criticized the FTC’s decision during the final days of the Obama administration to sue Qualcomm Inc. for anticompetitive patent licensing practices.

The Qualcomm suit can be withdrawn by a majority of commissioners. However, the FTC’s two sitting members — Acting Chairman Maureen Ohlhausen and Democratic commissioner Terrell McSweeny — are deadlocked on the case, which means it continues for now.

“If commissioners were trying to decide how to proceed with a case, they might seek advice from the general counsel, but there’s no reason to think that a 1-1 split commission is going to be considering any such changes, especially with new commissioners on the way,” Stephen Calkins, an antitrust law professor at Wayne State University and former FTC general counsel, told Bloomberg Law.

President Donald Trump has announced five new FTC nominees. Three commission spots are vacant, and Ohlhausen and McSweeny are expected to leave.

The FTC’s general counsel represents the agency in court and provides legal counsel to the commission and its bureaus and offices. Abbott replaces David Shonka, who announced March 26 that he is stepping down to join a private law practice.

“With his considerable knowledge and experience, he will contribute significantly to the continued effectiveness of this agency in protecting American consumers,” Ohlhausen said in a statement about Abbott.

Abbott has previously served multiple roles at the FTC, including assistant director of the Bureau of Competition. In addition, he has served as director of patent and antitrust strategy for BlackBerry Ltd, chief counsel for the National Telecommunications and Information Administration, and counselor to the general counsel of the Commerce Department.

Both Ohlhausen and Abbott have criticized the legal theories used to bring the Qualcomm suit, which accuses the company of violating antitrust laws by employing abusive patent licensing tactics.

“The FTC simply cannot afford any more embarrassing and ill-reasoned antitrust initiatives that undermine basic principles of American antitrust enforcement and may be used by foreign competition authorities to justify unwarranted actions against American firms,” Abbott said in a January 2017 blog post.

The case is pending before the U.S. District Court for the Northern District of California.

To contact the reporter on this story: Alexei Alexis in Washington at aalexis@bloomberglaw.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com

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