BILL BLUMENTHAL, a former General Counsel of the Federal Trade Commission, advises clients across a range of industries on all aspects of antitrust law, including mergers and acquisitions, joint ventures, horizontal and vertical restraints, monopolization, predatory pricing, and distribution agreements. He also counsels on consumer protection issues such as privacy, identity theft, financial practices, and advertising and marketing practices.
Recent representative matters have included:
- Advising Keurig Green Mountain in connection with antitrust clearances for the company’s acquisition by JAB Holding.
- Advising Duke Energy, the nation’s largest utility, in connection with antitrust clearances for the company’s acquisition of Piedmont Natural Gas.
- Advising CatamaranRx, a leading pharmacy benefit manager, in connection with antitrust clearances for the company’s acquisition by United Health.
- Advising Sigma-Aldrich, a leading supplier of chemicals and laboratory equipment for life science and high technology applications, in connection with global regulatory clearances for the company’s acquisition by Merck KGaA.
- Advising Catalyst Paper in connection with regulatory reviews and approvals of the company’s acquisition of assets divested by Verso and NewPage, two leading producers of coated paper for publications and labels, as a condition of government clearance of the Verso-NewPage merger.
- Advising Ingredion, a leading global provider of ingredients to numerous industries, in connection with antitrust clearances for the company’s acquisition of Penford.
- Advising Monsanto in connection with regulatory clearances for its formation of The BioAg Alliance with Novozymes.
- Advising Dell in connection with regulatory clearances for its acquisition of StatSoft, Inc., a developer of analytics software products and solutions.
- Advising Churchill Downs in connection with regulatory clearances for its acquisition of Big Fish Games, one of the world’s leading producers and distributors of mobile and online games.
- Advising Alaska Communications systems in connection with regulatory clearances for the sale of its wireless subscriber base and interest in Alaska Wireless Network to co-venturer General Communications.
- Advising multiple pharmaceutical companies on the settlement of intellectual property disputes with generic manufacturers.
- Advising multiple consumer products companies on government investigations of advertising claims and marketing practices.
In surveys conducted by Chambers, Global Competition Review, Who’s Who Legal, The Legal 500, and other organizations, Bill has been ranked over the years among the world’s foremost competition practitioners. Chambers has described him as “an ‘incredibly bright,’ ‘deep antitrust thinker’ with a great deal of experience in the area” and “very intricate, detailed, comprehensive knowledge” of government agencies. In Best Lawyers in America clients describe him as “among the best antitrust practitioners in the U.S.” and “a strategic thinker who understand issues in the U.S. and abroad.” Washingtonian magazine includes Bill as one of the region’s “best legal minds” in the area of Antitrust.
Bill has more than three decades of experience in the fields of antitrust and consumer protection. Most of his experience has been in private practice, but from 2005 to 2009 he served as the General Counsel of the Federal Trade Commission.
In private practice, his engagements have involved evaluation and advice, regulatory filings, civil and criminal investigations, advocacy before federal and state enforcement agencies (most frequently the U.S. Department of Justice and Federal Trade Commission), coordination with foreign counsel, negotiation and entry of consent orders, and federal court litigation. Notable representative matters have included the following public-record cases:
- FTC v. Hearst Trust (representing Wolters Kluwer as third-party purchaser of an electronic data business divested by Hearst pursuant to a consent settlement arising from a prior merger).
- In re Lafarge S.A. (representing Blue Circle in its merger with Lafarge and in the negotiation of a consent order permitting transaction to proceed).
- In re Agrium, Inc. (representing Agrium in its purchase of fertilizer business of Unocal and in the negotiation of a consent order permitting the transaction to proceed).
- United States v. UCAR International, Inc. (representing UCAR in negotiation of a plea agreement relating to cartel claims).
- In re Fleet Finance, Inc. (representing Fleet in an investigation of its lending practices and in the negotiation of a consent order relating to Truth in Lending Act claims).
- Commonwealth of Pennsylvania v. Russell Stover Candies, Inc. (representing Pet Incorporated in the sale of its Whitman’s Candies chocolate subsidiary to Russell Stover and in the defense of the transaction against a government motion for preliminary injunction, which motion was denied after hearing).
- In re First Brands Corporation (representing First Brands in an investigation of advertising claims relating to degradability of Glad bags and in the negotiation of a related consent order).
- United States v. Nippon Sanso K.K. (representing Nippon Sanso in its acquisition of Semi-Gas Systems and in the defense of the transaction against a government motion for preliminary injunction, which motion was denied after hearing).
- United States v. Agway Petroleum Corporation (representing Agway in an investigation of its marketing practices and in the negotiation of a consent order relating to trade regulation rule governing octane).
- In re NEC Home Electronics (U.S.A.), Inc. (representing NEC in an investigation of its advertising claims and in the negotiation of a related consent order).
- Advanced Television Systems Committee (serving for twenty years as outside general counsel to the standard-setting organization that developed high definition television).
During Bill’s four-year term as General Counsel of the FTC, he served as the agency’s chief law officer. His responsibilities included advising the Commission on law and policy, representing the agency in federal and state courts, and coordinating with other agencies of government. Among his other activities while at the FTC, Bill:
- Oversaw the agency’s participation in a series of cases before the U.S. Supreme Court, including Altria Group, Inc. v. Good (preemption of marketing claims), Leegin Creative Leather Products, Inc. v. PSKS, Inc. (resale price maintenance), Credit Suisse Securities (USA) LLC v. Billing (antitrust immunity), Safeco Ins. Co. v. Burr (willfulness under Fair Credit Reporting Act), Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co. (predatory buying), Texaco, Inc. v. Dagher (joint venture pricing agreement), Illinois Tool Works, Inc. v. Independent Ink, Inc. (presumption of market power from patent ownership in tying case), and Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc. (price discrimination among non-competing dealers). More generally, he supervised the agency’s litigation in the federal courts of appeal, most notably in FTC v. Whole Foods Market, Inc. (standard governing issuance of preliminary injunction in FTC merger challenge).
- Supervised the agency’s hearings and policy development in the area of intellectual property, patents, and standards. He worked closely with counterparts at the U.S. Patent and Trademark Office to align policy positions, most notably in amicus advocacy before the U.S. Supreme Court in eBay Inc. v. MercExchange, L.L.C. (standard governing issuance of preliminary injunction in private infringement action) and KSR International Co. v. Teleflex Inc. (standard governing obviousness assessment).
- Played a lead role in the government’s engagement on issues of competition policy with other countries, particularly in Asia, and worked closely with counterparts in the U.S. Department of State, the U.S. Department of Commerce, and the Office of the U.S. Trade Representative. In particular, Bill served as a principal voice of the U.S. government in ongoing discussions with China over its new Anti-Monopoly Law, including through quarterly meetings in Beijing during the period 2005-09. He consulted regularly with the Japan Fair Trade Commission, and he represented the U.S. government in meetings with the JFTC, members of the Diet, and the business community concerning revisions to Japan’s Anti-Monopoly Act. He oversaw the provision of technical assistance to the Competition Commission of India, and he represented the U.S. government in periodic meetings with the CCI and India’s Ministry of Corporate Affairs. In recognition of his contributions to the development of competition law in the region, Bill was awarded honorary life membership in India’s International Academy of Laws.
- Served as a public voice of the agency in articulating major policy positions, particularly on international competition policy, merger process, and intellectual property. Bill’s speeches remain posted at www.ftc.gov/speeches/blumenthal.shtm.
Bill is the author of more than sixty published articles, which have appeared in books, law reviews and other academic journals, and periodicals of broader circulation. His credits include the Oxford Journal of Antitrust Enforcement, California Law Review, George Washington Law Review, Antitrust Law Journal, Antitrust Bulletin, LexisNexis Antitrust Report, National Law Journal, and many other publications. He has contributed chapters to scholarly texts issued by McGraw-Hill, Wolters Kluwer, Edward Elgar, and other imprints. He was the principal author of the ABA monograph Horizontal Mergers: Law and Policy and the project leader for the initial edition of the ABA guidebook The Merger Review Process. In 2011 he received the Burton Award for Distinguished Legal Writing.
The following is a list of some of Bill’s most significant contributions:
- The Merger Review Process, ABA Antitrust Section (1st ed. 1995) (project leader).
- Monograph No. 12, Horizontal Mergers: Law and Policy, ABA Antitrust Section (1986) (editor and task force chairman).
- “USA Chapter,” The International Comparative Legal Guide to: Merger Control 2016, Global Legal Group (2016) (co-authored with Marc Raven).
- “The Accidental Conception of Multijurisdictional Merger Review,” 21 Geo. Mason L. Rev. 1145 (2014) (co-authored with S. Dnes).
- “Models for Merging the US Antitrust Agencies,” 1 Oxford J. Antitrust Enforcement 24 (2013).
- “Merger Control: Key International Norms and Differences,” Research Handbook on International Competition Law 319 (A. Ezrachi ed. 2012) (co-authored with D. Daniel Sokol).
- “Alternative Dispute Resolution and Federal Trade Commission Antitrust Enforcement,” EU and US Antitrust Arbitration (Gordon Blanke & Philip Landolt eds. 2011) (co-authored with James D. Hurwitz).
- "Scope and Specificity in the 2010 Guidelines: A Pretty Good Balance,” Antitrust (Fall 2010), at 10.
- “Thy Lamp Unto the World: International Convergence After the 2010 Guidelines,” Competition Policy International, (October 2010), at 1.
- “Discussant Comments on Exploitative Abuses under Article 82 EC,” European Competition Law Annual 2007: A Reformed Approach to Article 82 EC (Claus-Dieter Ehlermann & Mel Marquis eds. 2008).
- “The Challenge of Sovereignty and the Mechanisms of Convergence,” 72 Antitrust L.J. 267 (2004).
- “Toddling towards Globalization of Merger Process: On the ICN at Naples,” Antitrust Report (MB) (Fall 2002), at 4.
- “Symposium: Solving Competition Problems in Merger Control – Reconciling the Debate over Merger Remedies: A Discussant’s Proposed Decision Rule,” 69 Geo. Wash. L. Rev. 978 (2001).
- “Symposium: Antitrust at the Millennium – Clear Agency Guidelines: Lessons from 1982,” 68 Antitrust L.J. 5 (2000), reprinted in Antitrust at the Millennium 223 (ABA 2000).
- “B2B Internet Exchanges: The Antitrust Basics,” Antitrust Report (MB) (May 2000), at 34.
- “Channels of Distribution as Merger “Markets”: Interpreting Staples and Cardinal,” Antitrust Report (MB) (November 1998), at 2 (co-authored with D. Cohen).
- “Symposium: Twenty Years of Hart-Scott-Rodino Merger Enforcement – Introductory Note,” 65 Antitrust L.J. 813 (1997).
- “Symposium: Antitrust, Current Enforcement, Congressional Attitudes and Initiatives – Epilogue: The Issues That Divide Us,” 41 Antitrust Bull. 585 (1996).
- “The Scope of Permissible Coordination Between Merging Entities Prior to Consummation,” 63 Antitrust L.J. 1 (1994).
- “Ambiguity and Discretion in the New Guidelines: Some Implications for Practitioners,” 61 Antitrust L.J. 469 (1993).
- “Market Imperfections and Overenforcement in Hart-Scott-Rodino Second Request Negotiations,” 36 Antitrust Bull. 745 (1991).
- “Relevant Markets in the Health Care Industry,” Developments in Antitrust Health Care Law 187 (1990).
- “Three Vexing Issues under the Essential Facilities Doctrine: ATM Networks as Illustration,” 58 Antitrust L.J. 855 (1990).
- “Analysis of Hospital Mergers under the Federal Antitrust Laws,” 12 Antitrust in the Health Care Field (Nat’l Health Law. Ass’n 1989).
- “Symposium: The 1982 Merger Guidelines – The 1982 Guidelines and Pre-Existing Law,” 71 Calif. L. Rev. 311 (1983) (co-authored with D. Baker).
Bill has served as Vice Chair of the American Bar Association’s Section of Antitrust Law, as the Section’s International Officer, as chair of the Section's merger committee, as liaison to the Canadian Bar Association, and in numerous other ABA leadership positions. He has been active in the work of the International Competition Network, the OECD, the International Chamber of Commerce, and the U.S. Chamber of Commerce. He has served on the editorial board or advisory board for numerous publications.
Bill speaks frequently before bar groups and industry and academic audiences. Engagements in recent years have included appearances before the OECD, the Government of India Ministry of Law and Justice, the ABA Antitrust Section, the Canadian Bar Association, the Law Society of England and Wales, the International Bar Association, the US-India Business Council, the Hong Kong General Chamber of Commerce, the U.S. Chamber of Commerce, the National Foreign Trade Council, the [Indian] International Academy of Law, Instituto Brasileiro de Estudos das Relacoes de Concorrencia e de Consumo (IBRAC), the Korean Chamber of Commerce, the American Intellectual Property Law Association, Oxford University, George Washington University Law School, George Mason University Law School, University of Minnesota Law School, Fordham Law School, the Jevons Institute for Competition Law and Economics, the British Institute of International and Comparative Law, University of Amsterdam, Chatham House, and several commercial conference organizers.
The following is a selection of significant engagements over the past several years:
- “Agency Ethics: Considerations for Competition Agencies,” International Competition Network 2016 Annual Conference (Singapore, April 28, 2016)
- “Policy at the FTC,” Heritage Foundation, Antitrust Policy for a New Administration (Washington, D.C., January 26, 2016)
- “Policy, But What Now: The GCR Section 5 Roundtable,” Global Competition Review (September 8, 2015)
- Moderator, “Competition and the Health Sector,” Oxford Centre for Competition Law and Policy, Antitrust Enforcement Symposium (Oxford, UK, June 27, 2015)
- “A Retrospective on the Term of Commissioner Joaquin Almunia, and a Look Ahead,” GCR Fourth Annual Antitrust Law Leaders’ Forum (Miami, FL, February 5, 2015)
- “Roundtable on the Future of the FTC,” George Washington Law Review Symposium on The FTC at 100: Centennial Commemorations and Proposals for Progress (Washington, D.C., November 8, 2014)
- “Information Sharing Between Competitors,” Strafford Publications Teleconference on Information Sharing by Competitors: Minimizing Antitrust Liability (Washington, D.C., October 22, 2014)
- “Navigating the Asian Shoals: Compliance with Emerging Competition Regimes in Asia,” ABA Antitrust Section and Expert Advisory Committee of the Anti-Monopoly Commission of the State Council, Conference on Antitrust in Asia: China (Beijing, China, May 23, 2014)
- “Antitrust Developments in China,” Silicon Valley Association of General Counsel (Santa Clara, CA, May 13, 2014)
- Moderator, “International Competition Laws: Bridging Differences & Reducing Risks,” ABA Antitrust Section, Spring Meeting (Washington, D.C., March 26, 2014)
- “Extraterritoriality in Antitrust,” Organization for International Investment, General Counsel Conference (Washington, D.C., October 15, 2013)
- “Roundtable on Methodology and Technique,” ABA Antitrust Section, OECD, and George Washington University Law School, Symposium on Retrospective Analysis of Agency Determinations in Merger Transactions (Washington, D.C., June 28, 2013)
- “The FTC’s Google Investigation: Implications for the States and Other Countries,” George Mason University Law School Law & Economics Center, Third Annual Conference on Competition Policy in Search and Social Media (Arlington, VA, May 15, 2013)
- “Roundtable with Enforcement Officials,” ABA Antitrust Section, Spring Meeting (Washington, D.C., April 12, 2013)
- Moderator, “Dealing with India’s New Antitrust Laws: Practical Tips,” U.S.-India Business Council (Washington, D.C., April 9, 2013)
- “US Enforcement: Any Changes to the Menu?” George Washington University Law School Competition Law Center and Concurrences Journal, Joint International Conference on Antitrust in the Obama Second Term: What to Expect? (Washington, D.C., March 11, 2013)
- “Assessing Dynamic Efficiencies in Mergers,” University of Minnesota Law School, Antitrust Mergers Seminar (February 7, 2013)
- “Conference Chair,” ABA Antitrust Section, Conference on Antitrust in Asia: Developments in India's Competition Regime (Delhi, India, November 30 – December 1, 2012)