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Ashley (Lee) McMahon focuses her practice on antitrust and competition matters. Lee advises clients on complex issues relating to and arising under the antitrust laws in connection with civil litigation, international cartels, and mergers and acquisitions. She assists clients with premerger notification, review and analysis under the Hart-Scott-Rodino (HSR) Antitrust Improvements Act. Lee is experienced in areas of e-discovery, document review and production for investigations before the Federal Trade Commission (FTC), Department of Justice (DOJ) and state attorneys general office. Read Lee McMahon's full bio.

This month has seen significant changes in the landscape of federal leadership and the changes have now reached the Federal Trade Commission (FTC). On January 13, current Chair Edith Ramirez announced that she would resign from her position effective February 10, 2017. This Wednesday, January 25, the new administration designated Maureen Ohlhausen as Acting Chair. Ohlhausen, a Republican, was one of two remaining commissioners at the agency, along with Democrat Terrell McSweeny.

Ramirez served as a commissioner since 2010 and chair since early 2013 by designation of fellow Harvard Law Review member, President Obama. She spent her early career as a litigator with Quinn Emanuel and focused on antitrust, unfair competition and Lanham Act work. From the beginning of her tenure as chair, Ramirez developed a reputation as a hard-working and effective leader who was experienced, even-handed and not afraid to bring mergers to court. As a Latina and the daughter of Mexican immigrants, Ramirez was the first member of an ethnic minority to oversee the agency. During her tenure, she also secured a number of high-profile wins for the commission.

Ohlhausen has been a commissioner since 2012, though she started at the FTC’s General Counsel’s Office back in 1997. She has also worked as an advisor to former FTC Commissioner Orson Swindle and has been Deputy Director and then Director of the Office of Policy Planning. Ohlhausen stated at a Heritage Foundation antitrust conference this month that “all signs point to a new antitrust policy.” She discussed narrowing the scope of “Second Requests” in merger reviews by making them more targeted and therefore less burdensome. She also expressed a priority of greater protection for intellectual property rights, complaining that the agency has been too quick to accuse standard essential patent (SEP) holders of anticompetitive behavior when suing to defend their rights.

Meanwhile, the new administration’s position on merger activity hasn’t been clear. While in October 2016, Donald Trump described the AT&T-Time Warner deal as “a deal we will not approve in my administration because it’s too much concentration of power in the hands of too few,” and said that Comcast’s acquisition of NBC Universal “concentrates far too much power in one massive entity that is trying to tell the voters what to think and what to do,” he has subsequently chosen advisers on telecom and antitrust issues who appear to apply traditional antitrust analysis that is more merger-friendly than the prior administration.

Republican and Former Commissioner Joshua Wright leads the new administration’s transition of the FTC. The incoming administration will need to find three new commissioners for the five-member panel. At least one of the three must be a Democrat. The new appointments will be very important to follow for clients considering mergers in the near future.

On Friday, January 13, 2017, the Department of Justice (DOJ) and Federal Trade Commission (FTC) released the new Antitrust Guidelines for International Enforcement and Cooperation. These guidelines were jointly developed by the agencies and serve to update the Antitrust Enforcement Guidelines for International Operations that have been in place since April 1995. The new guidelines include a revised discussion on conduct involving foreign commerce, a new chapter on international cooperation, and updated language, case law, and illustrative examples throughout.

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On October 14, 2016, former vice president and director of information technology of Coach USA, Inc. (Coach), Ralph Groen, entered a guilty plea for concealing and attempting to destroy documents and giving false and misleading statements under oath in a deposition during the US Department of Justice Antitrust Division’s (DOJ) investigation of a joint-venture involving Coach.

The DOJ’s complaint alleged that despite two preservation notices issued by Coach to its management team, which included Groen, Groen directed subordinates to destroy month-end backup tapes of emails and electronic records. Due to the destruction, the records were not produced to the United States during discovery. The government argued that these materials were relevant and responsive to the DOJ’s discovery requests. Additionally, Groen then falsely informed the company’s outside counsel that these materials did not exist. Groen also concealed versions of backup procedure documents that would have been relevant and responsive to the DOJ’s requests, and only provided one version. Finally, during a deposition where Groen testified as a 30(b)(6) deponent in September 2013, he lied under oath, providing false and misleading statements to the government about Coach’s document retention practices and policies. Continue Reading Criminal Charges for Executive Stemming from Discovery Responses in DOJ Civil Antitrust Litigation

On October 6, the Federal Trade Commission (FTC) released its report on patent assertion entity (PAE) activity. The report is the result of research that began in September 2014 to address a gap in the agency’s understanding of PAEs, how they operate and how policies can be developed to reduce nuisance litigation. The study focused on PAE practices, including acquisition, litigation and licensing. The FTC recommends that policymakers address asymmetries in PAE litigation through various procedural and substantive reforms.

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