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From Antitrust Law Daily, March 22, 2016

Commissioner Brill to leave FTC, join Hogan Lovells

By Jeffrey May, J.D.

After six years at the FTC, Commissioner Julie Brill is stepping down. Brill will resign her position effective March 31 and will join Hogan Lovells as a partner and co-director of the firm's privacy and cybersecurity practice.

Brill, who was appointed by President Obama, was sworn in as an FTC member on April 6, 2010. Her term was set to expire in September.

She joined the Commission after serving as Senior Deputy Attorney General and Chief of Consumer Protection and Antitrust at the North Carolina Department of Justice. Prior to her time in North Carolina, she worked in the Vermont Attorney General's Office.

In announcing the resignation, FTC Chairwoman Edith Ramirez called Brill “an unwavering advocate for consumers and competition.” Ramirez added: “Brill’s expertise in consumer protection, privacy, and antitrust has been an asset to the agency, and we are sorry to see her leave.”

Brill has been a frequent speaker on consumer privacy and data security issues. She has encouraged businesses to adopt “reasonable” security standards to protect consumer information and to assist consumers in understanding how their personal data is being used and how to protect the privacy of their data. She also has called on data brokers to make their operations more transparent. In addition, she has urged Congress to expand the FTC’s authority to take action and seek fines against telecommunications carriers and distributors that engage in unlawful conduct by deceptively marketing prepaid calling cards.

Among Brill's notable accomplishments in the antitrust area was her 2012 Commission opinion, holding that the combination of Toledo-area hospital providers ProMedica Health System, Inc. and St. Luke's Hospital was anticompetitive and violated Sec. 7 of the Clayton Act (2012-1 Trade Cases ¶77,840). The 2012 Commission opinion was upheld by the Sixth Circuit (2014-1 Trade Cases ¶78,742).

When there were split votes among the commissioners on enforcement actions, Brill reliably voted with her fellow Democrats to pursue alleged violations. However, there were times that she dissented because, in her view, the Commission did not go far enough to challenge antitrust law violations.

Brill dissented from the Commission’s approval last year of Reynolds American Inc.'s $27.4 billion acquisition of Lorillard Inc. She voiced serious concerns over whether the divestiture remedy in the case was sufficient to restore the loss of competition in the U.S. cigarette market due to the combination of the second- and third-largest cigarette producers in the United States.

In 2011, Brill was the lone dissenter from the Commission's decision to end its challenge to Laboratory Corporation of America's acquisition of Westcliff Medical Laboratories, Inc. After a federal district court denied the agency's request for a preliminary injunction (2011-1 Trade Cases ¶77,348), Brill supported pursing an appeal of the decision in light of “important principles of merger law” raised by the case.

Commission vacancies. The five-member Commission will be down to three commissioners at the end of the month. Joshua D. Wright resigned last August to return to his position at George Mason University School of Law as a professor and as Director of the Global Antitrust Institute at the Law and Economics Center. President Obama has yet to name a replacement for Wright, a Republican. In recent years, the confirmation process has been slow. As a result, it's most likely that the vacancies on the FTC will have to be filled by the next president.

Hogan Lovells announcement. Hogan Lovells issued a statement today on Brill's decision to join the law firm. The firm noted that she has been hailed as “the Commission’s most important voice on Internet privacy and data security issues,” a “key player in U.S. and global regulations,” and “one of the top minds in online privacy.” The firm said that Brill would also be involved in Hogan Lovells’ antitrust practice.

As co-director of the Privacy and Cybersecurity practice, Brill will succeed co-director and founding partner Christopher Wolf, who will transition to a senior status at the firm, according to Hogan Lovells. Brill will be joined in leadership with Marcy Wilder, co-director of the Privacy and Cybersecurity practice; Harriet Pearson, leader of the firm’s Cybersecurity Solutions Group and Cyber Risk Services business unit; and Eduardo Ustaran, a partner in the firm’s London office, and leader of the firm’s European data protection practice.

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