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OVERSIGHT OF THE 

ANTITRUST ENFORCEMENT AGENCIES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON 

REGULATORY REFORM, 

COMMERCIAL AND ANTITRUST LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

MAY 15, 2015 

Serial No. 114–33 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 

SUBCOMMITTEE ON REGULATORY REFORM, COMMERCIAL AND ANTITRUST LAW

TOM MARINO, Pennsylvania, Chairman 

BLAKE FARENTHOLD, Texas, Vice-Chairman 

DARRELL E. ISSA, California 

DOUG COLLINS, Georgia 

MIMI WALTERS, California 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

DANIEL FLORES, Chief Counsel 
(III) 

C O N T E N T S 

MAY 15, 2015 

Page 

OPENING STATEMENTS 

The Honorable Tom Marino, a Representative in Congress from the State 

of Pennsylvania, and Chairman, Subcommittee on Regulatory Reform, Commercial and Antitrust Law .................................................................................. 1 

The Honorable Henry C. ‘‘Hank’’ Johnson, Jr., a Representative in Congress 

from the State of Georgia, and Ranking Member, Subcommittee on Regulatory Reform, Commercial and Antitrust Law ................................................. 3 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 4 

The Honorable Darrell E. Issa, a Representative in Congress from the State 

of California, and Member, Subcommittee on Regulatory Reform, Commercial and Antitrust Law ........................................................................................ 5 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 6 

WITNESSES 

The Honorable William J. Baer, Assistant Attorney General, Antitrust Division, U.S. Department of Justice 

Oral Testimony ..................................................................................................... 15 

Prepared Statement ............................................................................................. 18 

The Honorable Edith Ramirez, Chairwoman, Federal Trade Commission 

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 31 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 7 

Material submitted by the Blake Farenthold, a Representative in Congress 

from the State of Texas, and Vice-Chairman, Subcommittee on Regulatory 

Reform, Commercial and Antitrust Law ............................................................ 56 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to Questions for the Record from the Honorable William J. Baer, 

Assistant Attorney General, Antitrust Division, U.S. Department of Justice 74 

Response to Questions for the Record from the Honorable Edith Ramirez, 

Chairwoman, Federal Trade Commission .......................................................... 86 
Page

IV 

OFFICIAL HEARING RECORD 

UNPRINTED MATERIAL SUBMITTED FOR THE HEARING RECORD

Material submitted by the Honorable Darrell E. Issa, a Representative in 

Congress from the State of California, and Member, Subcommittee on Regulatory Reform, Commercial and Antitrust Law ................................................. 63 

http://docs.house.gov/meetings/JU/JU05/20150515/103472/HHRG-114- 

JU05-20150515-SD003.pdf 
(1) 

OVERSIGHT OF THE 

ANTITRUST ENFORCEMENT AGENCIES 

FRIDAY, MAY 15, 2015 

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON REGULATORY REFORM, 

COMMERCIAL AND ANTITRUST LAW

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 9:01 a.m., in room 

2141, Rayburn House Office Building, the Honorable Tom Marino 

(Chairman of the Subcommittee) presiding. 

Present: Representatives Marino, Goodlatte, Conyers, Farenthold, Issa, Trott, Johnson, DelBene, Jeffries, Cicilline, and Peters. 

Staff Present: (Majority) Anthony Grossi, Counsel; Andrea Lindsey, Clerk; (Minority) Slade Bond, Counsel; and James Park, Counsel. 

Mr. MARINO. Good morning. 

The Subcommittee convenes this morning to hear from the Nation’s two top antitrust enforcement officials regarding their ongoing efforts, as well as to discuss certain issues facing the agencies 

in the application of antitrust law. 

I am going to recognize myself for a couple of minutes for an 

opening statement and then my good friend Ranking Member Mr. 

Johnson’s opening statement. 

In doing so, the Subcommittee continues its strong and vigilant 

oversight of the agencies under its jurisdiction. Continued oversight 

is one of the fundamental responsibilities of this Subcommittee and 

brings to light the checks and balances envisioned by our Founding 

Fathers. 

The Federal Trade Commission, through its Bureau of Competition, and the Department of Justice, of which I had the honor of 

working there through its Antitrust Division, are charged with protecting the freedom of our markets from anticompetitive conduct 

and practices, thereby enhancing American consumer welfare. 

To facilitate a free market, the agency should enforce the antitrust laws in a manner that is transparent, fair, predictable, and 

reasonably stable over time. This will allow businesses to innovate 

and grow with a firm understanding of what conduct runs afoul of 

the law and without the fear of capricious government intervention. 

One of the areas that has drawn the scrutiny of the Judiciary 

Committee, sitting FTC Commissioner’s antitrust law practitioners, 
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and academics is the FTC’s authority under section 5 of the FTC 

Act, and I greatly respect the people and what they do at the FTC. 

Specifically, there is a concern about the parameters of the FTC’s 

enforcement authority. Many legal practitioners and members of 

the business community question what conduct qualifies as an ‘‘unfair method of competition’’ under section 5 of the FTC Act, but 

does not otherwise violate the Clayton or Sherman Acts. 

Last Congress, FTC Chairwoman Ramirez testified that the FTC 

has used its stand-alone section 5 authority in limited circumstances and has provided appropriate guidance on when it will 

exercise such authority. Yet, it appears that much, if not all, of this 

guidance is contained in consent decrees reached with parties following an FTC administrative proceeding without any judicial review. 

FTC Commissioner Wright recently announced that he has proposed several definition of the FTC’s section 5 stand-alone authority for a vote within the Commission. I look forward to hearing 

whether the FTC has seriously reviewed any of Commissioner 

Wright’s proposals. 

Another area deserving a serious review concerns the different 

merger review process of two antitrust enforcement agencies. Last 

year, the Standard Merger and Acquisition Reviews Through Equal 

Rules Act, or the SMARTER Act, was introduced and reported favorably by the Judiciary Committee. The legislation permanently 

removes the disparities in the merger review process. It also ensures that companies face the same standards and processes regardless of whether the FTC or Justice Department reviews the 

merger. 

While the FTC took a positive step this year by approving a rule 

that partially adopts one of the reforms contained in the SMARTER Act, the full set of changes to the merger review process should 

be made permanent. It should not remain subject to a Commission 

that has already demonstrated an ability to withdraw and reinstate 

rules over time. 

The Committee also is concerned with the application of competition laws of foreign jurisdiction. And I’m looking forward to hearing 

your response on those. In particular, the Committee has received 

troubling reports of China’s use of its antitrust laws to promote domestic industry at the expense of intellectual property rights and 

international business. 

I look forward to discussing how our antitrust enforcement agencies are coordinating with other administrative agencies, departments, and their foreign counterparts to ensure that global antitrust policy promotes competition. 

Today’s hearing will allow for an open discussion on these and 

other issues with the aim of ensuring that the antitrust enforcement agencies are appropriately policing our free markets. 

And please let me add we will be called to votes somewhere 

around 9:30. In consideration of our distinguished guests, I’m going 

to try to be very efficient. 

And, with that, I now recognize my good friend from Georgia, 

Congressman Hank Johnson, and he is the Ranking Member of 

this Subcommittee. 

Mr. Johnson. 
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Mr. JOHNSON. Thank you, Mr. Chairman. 

I welcome this esteemed panel today. Chairwoman Edith Ramirez has distinguished herself in her short time as the chair of the 

Federal Trade Commission. 

The Commission recently celebrated a century’s commitment to 

its important mission to protect consumers on a variety of issues. 

One particular aspect of the Commission’s mission that is near and 

dear to me is its focus on consumer privacy. In recent years, the 

Commission has demonstrated a keen interest in protecting against 

unfair privacy intrusions. 

Additionally, it is my hope that the Commission’s role in protecting consumers and holding corporations accountable for the 

promises they make grows and flourishes as part of making the 

Obama administration’s vision for strong consumer privacy protection a reality following the White House privacy blueprint and big 

data report. 

As the proud sponsor of the Application Privacy, Protection, and 

Security Act, or the APPS Act, I recognize that consumer privacy 

is one of the key issues of our time and will only grow more complicated as more consumers and devices are connected. 

I would also note that, although we conceive privacy as primarily 

a consumer protection issue today, there is a growing consensus 

that big data and consumer privacy have implications on antitrust 

law and competition policy. On both sides of the Atlantic, there has 

been substantial focus on the role of big data as a barrier to market entry as well as calls to incorporate consumer privacy issues 

into traditional antitrust analysis. 

Additionally, the Supreme Court has long held that Congress intended that the Sherman Act, the first major Federal antitrust 

statute, to be a consumer welfare prescription. Given the broad 

agreement among consumer advocates, the public, and stakeholders that user trust and privacy are central to user experience, 

it is clear that restraints on trade and competition that upset this 

experience in consumer preference are not consistent with the goals 

of antitrust law. 

Assistant Attorney General Baer has also distinguished himself 

as a voice for consumers in his tenure as the Assistant Attorney 

General for the Antitrust Division. Through a history of strong enforcement of the antitrust laws, competition has flourished under 

his leadership, although work remains to be done. 

Of particular interest to me is the Justice Department’s role in 

enforcing private antitrust actions. In 2013, the Supreme Court 

wrongly decided in American Express v. Italian Colors that parties 

must arbitrate even where antitrust laws prohibit a party from 

using its monopoly power to force other parties to pay higher fees. 

In a joint brief alongside the Solicitor General, the Justice Department’s Antitrust Division argued for the United States that, 

‘‘Private actions are an important supplement to the government’s 

civil enforcement efforts under Federal competition laws, which the 

Department of Justice and the Federal Trade Commission have primary responsibility for administering,’’ and concluded that, ‘‘the 

United States, therefore, has a substantial interest in ensuring 

that arbitration agreements are not used to prevent private parties 
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from obtaining redress for violations of their Federal statutory 

rights.’’ 

I wholly agree with this view. Although this issue arose just before Assistant Attorney General Baer’s tenure, it is clear that opportunities remain for the Antitrust Division of the Justice Department to right this wrong. 

For instance, as a condition for the merger agreements, the Justice Department may require merging parties to agree to condition 

the merger’s approval on the parties’ agreement to not require 

forced arbitration and claims, particularly in the antitrust context. 

This would, at least in some circumstances, curtail the impact of 

the rapid growth of forced arbitration clauses and forestall their 

negative impact on competition. 

With that, I thank the Chairman for holding this hearing. And 

I yield back the balance of my time. 

Mr. MARINO. Thank you, Mr. Johnson. 

And just some housekeeping. Without objection, the Chair is authorized to declare recesses of the Committee at any time. 

Now the Chair recognizes the Chairman of the full Judiciary 

Committee, Congressman Goodlatte, for his opening statement. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

The vigorous, intelligent, and predictable enforcement of antitrust law is critical to the American free market. By contributing 

to clear boundaries within which companies can compete, innovate, 

and grow, sound antitrust enforcement helps the American economy to flourish and American consumers to reap the competitive 

benefits of choice, quality, and reasonable prices. 

Today’s hearing will explore whether the antitrust enforcement 

agencies are administering the antitrust laws in a fashion that promotes a free market and encourages robust competition. 

Last Congress, I led a letter to Chairwoman Ramirez expressing 

concerns with the lack of guidance on the Federal Trade Commission’s section 5 stand-alone enforcement authority. As I explained 

then, the absence of clear guidance creates an enforcement environment that can deter innovation and economic creativity and is antithetical to the principles underlying our antitrust laws. 

Over a year has passed and the FTC has not yet issued guidance 

and does not appear any closer to doing so. It is my hope that the 

Judiciary Committee will not need to take action beyond writing 

letters and holding hearings. I look forward to discussing this issue 

today in more detail with Chairwoman Ramirez and working together to ensure the marketplace has transparent and predictable 

rules within which to operate. 

Another important reform that promotes the fair, consistent, and 

predictable enforcement of our antitrust laws is the Standard 

Merger and Acquisition Reviews Through Equal Rules Act, or the 

SMARTER Act. This legislation harmonizes the standards and 

processes that the antitrust enforcement agencies apply to merger 

reviews. I look forward to working with my colleagues in both the 

House and Senate to enact this important reform into law. 

Finally, I understand that the Department of Justice and the 

FTC are undertaking separate antitrust inquiries into areas that 

may affect intellectual property issues. The FTC is in the midst of 

a nearly 2-year study of patent assertion entities, commonly re-
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ferred to as ‘‘patent trolls.’’ I look forward to hearing additional detail regarding the progress and substance of the inquiry, as well as 

when we can expect a final report on the study. 

Additionally, the Department of Justice is in the process of reviewing the separate consent decrees that govern the two largest 

performing rights organizations, the American Society of Composers, Authors and Publishers, or ASCAP, and the Broadcast 

Music, Incorporated, BMI. I’m interested to learn about the status 

of this review, when it might conclude, and what potential revisions to the decrees are being considered. 

I look forward to hearing the testimony today from our witnesses 

on the agencies’ antitrust enforcement efforts in general as well as 

on these important issues. 

Thank you, Chairman Marino, for continuing the Committee’s 

long and robust oversight record by holding this Subcommittee 

hearing. 

At this time I would like to yield to the gentleman from California, Mr. Issa, for his comments. 

Mr. ISSA. Thank you for yielding, Mr. Chairman. 

Today I will be entering into the record by unanimous consent 

the report of the Committee on Oversight and Government Reform 

dated January 2, entitled ‘‘Tiversa, Inc.: White Knight or Hi-Tech 

Protection Racket?’’ 

Although it would be inappropriate to ask for specifics on this ongoing case, I will be dealing with the ramifications of that case. 

And I would like to take a moment to thank both Mr. Baer and 

Ms. Ramirez for something that is unusual for me to do, and that 

is, in the case of Tiversa, only because of the Justice Department’s 

determination that Rick Wallace was a credible witness was he 

granted immunity as a whistleblower so that he could testify before 

the administrative law judge in that case, which was the LabMD 

case. 

In that case, he testified under oath that Tiversa had a pattern 

of deception that included, but not limited to, its falsifying information in the LabMD case. This calls into question the very system 

on which the FTC bases its section 5 authority, which is that most 

often, when they are going after a data breach, they are relying on 

the data breach to be authentic and as stated. 

This is a complicated issue and one that I’m sure both the FTC 

and other agencies will be grappling with for a period of time. 

Many of my questions today will deal with section 5 authority and, 

in particular, in the case of a company such as Tiversa, who has 

shown to have scraped data from around the world on a regular 

basis, including and not limited to defense contractor information 

that involved Marine One’s new diagram for their cockpit, additionally, AIDS patients’ information in which those patients’ information was then used by an attorney for Tiversa to mount a plaintiff’s 

suit as a class-action suit against that free AIDS clinic. This has 

been verified by the Oversight Committee by factual data, including telephone records subpoenaed. 

When we have an entity like that, is the Federal Trade Commission’s primary responsibility to use section 5 authority to go after 

companies who have inadvertent breaches or should they be concentrating on the many companies who troll the Internet scraping 
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data or in some other way trying to make a living through hightech hijack and extortion? That is a question that I believe can be 

answered most properly by: You must do both, but certainly cannot 

fail to focus on those who prowl the Internet, causing these 

breaches and often taking full advantage. 

There are many good actors, many white knights. In the case of 

the investigation of Tiversa, we found that they were not a white 

knight. We found that the Federal Trade Commission, whether 

willingly or unwillingly, had been deceived. And today I want to 

thank both of our witnesses for their effort to bring that truth to 

the court. 

And I thank the gentleman and yield back. 

Mr. MARINO. Thank you. 

The Chair now recognizes the Ranking Member of the full Judiciary Committee, Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I will be brief. But the thrust of my opening statement deals with 

the fact that we have for too long ignored the fact that there ought 

to have been a much more vigorous antitrust action. I was concerned when we settled the American Airlines-US Airways merger. 

And I want to reflect that antitrust scrutiny of mergers have been 

woefully insufficient over the years. 

And what we are doing is continuing a new strategy of examining, for example, 12 telecommunication mergers since 1997; the 

failure of the AOL-Time Warner merger; in the banking industry, 

50 mergers since 2001. And so we’ve got a lot of cleaning up to do 

and a lot of reexamination of our strategies. 

In that sense, we are very cautious and wary of efforts of some 

in our legislature to undermine some of the important authority 

that we have. The good news is that the merger enforcement efforts 

of both agencies appear to reflect a new willingness to take care 

of the business at hand. 

And so it is in that spirit that I welcome our two witnesses, both 

who I think are moving us in a new and more vigorous direction. 

I will submit the rest of my statement for the record, Mr. Chairman, and yield back. 

[The prepared statement of Mr. Conyers follows:] 
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Mr. MARINO. Thank you. 

Without objection, the Members’ opening statements will be 

made part of the record. 

We have an exceptionally distinguished and experienced witnesses today. And I want to welcome you and thank you for being 

here. 

I will begin by swearing you in. Would you please stand. 

Do you swear that the testimony you are about to give is the 

truth, the whole truth, and nothing but the truth, so help you God? 

Let the record reflect that the witnesses have answered in the 

affirmative. 

You may be seated, please. 

Mr. Baer was sworn in as Assistant Attorney General for the Department of Justice Antitrust Division in January of 2013. Prior to 

his appointment, he was a partner in Arnold & Porter and head 

of the firm’s antitrust practice group and head of the FTC’s competition bureau from 1995 to 1999. 

Mr. Baer received a J.D. From Stanford Law School in 1975 and 

served as an editor of Stanford’s Law Review. He received a B.A. 

From the Lawrence University in 1972, where he graduated cum 

laude and Phi Beta Kappa. 

Thank you for being here, sir. 

Federal Trade Commission Chairwoman Edith Ramirez was 

sworn in as Commissioner of the FTC in April of 2010 and designated the chairwoman by President Obama on March 4th of this 

year. Before joining the Commission, Ms. Ramirez was a partner 

at Quinn Emanuel in Los Angeles, representing clients in intellectual property, antitrust, and unfair competition suits. 

Chairwoman Ramirez graduated from Harvard Law School cum 

laude, where she served as editor of the Harvard Law Review and 

holds an A.B. In history and magna cum laude from the University 

of Harvard. 

And welcome. 

Each of the witnesses’ writtenstatements will be entered into the 

record in its entirety. I ask that each witness summarize his or her 

testimony in 5 minutes or less. You see the lights in front of you. 

You know how they work. I’m not going to explain it. 

So, Mr. Baer, you are up. 

TESTIMONY OF THE HONORABLE WILLIAM J. BAER, ASSISTANT ATTORNEY GENERAL, ANTITRUST DIVISION, U.S. DEPARTMENT OF JUSTICE 

Mr. BAER. Thank you, Mr. Chairman. 

Mr. Chairman, Vice Chairman Farenthold, Ranking Member 

Johnson, Mr. Conyers, Representative Cicilline, I appreciate the opportunity to be back. I appreciate the role of the oversight that this 

Subcommittee and this Judiciary Committee has historically provided the Antitrust Division. It is an honor, as always, to share the 

witness table with my friend and my colleague, Chairwoman Ramirez. 

The antitrust laws that the Antitrust Division is privileged to enforce reflect judgments made by prior Congresses, 125 years ago in 

the case of the Sherman Act, 100 years ago with respect to the 

Clayton and FTC Acts, that free markets and competition are the 
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cornerstones of our economy. Antitrust enforcers serve as the economic cop on the beat, making sure we all play by the same rules, 

acting decisively where companies and company executives seek to 

restrain those free market forces. 

Our job, stated simply, is to ensure that your constituents benefit 

from lower prices and higher quality goods and services that competition provides. And that means smokestack industries to hightech markets, from health care to financial services, from e-books 

to airlines. Since I was last here about a year and a half ago, we 

have worked hard at the Antitrust Division to enforce the antitrust 

laws with vigor, with transparency, with fairness, and an analytical rigor. My prepared testimony provides the details. 

Let me just highlight a couple of things, if I may. Two weeks ago 

the Department of Justice showed its continuing resolve to prosecute financial crimes. We held Deutsche Bank accountable for manipulating the LIBOR rate, a key financial matrix, and forced them 

to pay a record $775 million penalty for fraud and antitrust violations. 

It is part of our ongoing effort to address restraints on competition in financial markets that includes LIBOR, municipal bond investment instruments, foreign currency exchange—an ongoing matter—real estate foreclosure bid rigging, and tax lien auction bid rigging. 

Mr. Chairman, no company is too big to prosecute. No one is too 

big to jail. And company executives who participate in these conspiracies will be charged along with the companies. In the last 6 

years, the Antitrust Division has brought felony charges against 

132 different companies. We have obtained almost $6 billion in 

penalties. 

We prosecuted, charged criminally, almost 400 individual wrongdoers. Ten years ago the average sentence for a criminal charge 

brought by the Antitrust Division was about 12 months. In 10 

years, we more than doubled that, to an average of 25 months. 

Foreign nationals don’t escape our scrutiny by engaging in offshore conduct that affects the U.S. market and U.S. consumers. A 

third of the individuals we have charged are foreign nationals. 

Many of them have agreed to come back to the United States and 

serve time. In other cases, we have successfully extradited individuals to come back and face the music. 

On the civil side, where we share enforcement with Chairwoman 

Ramirez and her talented group that are located about a block and 

a half from where I work, we have taken systematic action against 

both bad conduct and bad mergers. 

Most recently American Express was ordered by a judge in 

Brooklyn to abandon anti-steering rules that limited credit card 

competition. You all know that Comcast and Time Warner, after 

hearing antitrust concerns articulated by the Antitrust Division 

and the Federal Communications Commission, decided to give up 

on its proposed transaction. 

We don’t work alone. We work in partner with the FBI, which 

is instrumental in prosecuting these antitrust crimes. We worked 

over the last 5 years with 51 different State attorneys general in 

cooperation. Internationally, we work to export the principles of 
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sound competition law enforcement. That’s transparency, procedural fairness, and even-handed enforcement. 

We think, at the end of the day, there is a good value proposition 

for the scarce taxpayer dollars you entrust us with. I thank, as my 

time runs out, the women and the men of the Antitrust Division 

who work so hard on behalf of your constituents and the American 

consumer. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Baer follows:] 
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Mr. MARINO. Thank you Assistant General. 

Commissioner Ramirez. 

TESTIMONY OF THE HONORABLE EDITH RAMIREZ, 

CHAIRWOMAN, FEDERAL TRADE COMMISSION 

Ms. RAMIREZ. Thank you, Chairman Marino, Ranking Member 

Johnson, and Members of the Subcommittee for inviting me to testify regarding the Federal Trade Commission’s current antitrust 

enforcement and policy efforts. 

I’m pleased to be here with Assistant Attorney General Bill Baer. 

We have a very close working relationship with the Department of 

Justice’s Antitrust Division, and it’s been an honor to work with 

him and with his staff. 

Last year the FTC celebrated its centennial. For more than 100 

years now, the Commission has worked to ensure that American 

markets are open, vibrant, and unencumbered by unreasonable private or public restraints. 

One of our main responsibilities is preventing mergers that may 

substantially lessen competition. In fiscal year 2014 and through 

the first half of fiscal year 2015, we’ve challenged 28 mergers. 

In most of those cases, we negotiated a remedy allowing the 

merger to proceed. But in three instances the Commission authorized the staff to stop the merger, and in three other cases the parties abandoned the deal after we raised concerns. 

We also maintain an active program to identify and stop anticompetitive business practices. During the same timeframe, we 

brought nine enforcement actions to stop harmful conduct, such as 

unlawful exclusive dealing and invitations to collude. 

We focus our efforts, in particular, on sectors of the economy 

where actions will provide the greatest benefits with the largest 

number of consumers, including health care and consumer products. Anticompetitive mergers and conduct in healthcare markets, 

in particular, can threaten to undermine efforts to control costs. 

As shown by two recent important appellate wins in the St. 

Luke’s and ProMedica cases, we remain committed to preserving 

and promoting competition in healthcare provider markets. Merger 

activity in the pharmaceutical sector has also increased significantly, and we carefully review mergers between drug manufacturers to prevent them from acquiring market power and raising 

prices on crucial drugs. 

In the last 2 years alone, we took action in 13 pharmaceutical 

mergers ordering divestitures to preserve competition for drugs 

that treat diabetes, hypertension, and cancer, as well as widely 

used generic medications, like oral contraceptives and antibiotics. 

We also continue to protect consumers from anticompetitive drug 

patent settlements that delay generic entry. We will be starting a 

trial in Federal court in Philadelphia on June 1 in one of these 

cases, Cephalon, involving the billion-dollar drug Provigil. 

Given their direct impact on consumers’ pocketbooks, we also 

seek to promote competition for consumer products. We’re currently 

in Federal court here in the District seeking a preliminary injunction in our challenge to the proposed merger between Sysco and US 

Foods, the country’s two largest food service distributors. We allege 
30 

that the transaction will lead to higher prices and reduced service 

for national customers as well as customers in 32 local markets. 

Additionally, earlier this year the Commission ordered the largest divestiture ever in a supermarket merger, requiring Albertsons 

and Safeway to sell 168 supermarkets and 130 local markets in 

several Western States, ensuring that communities continue to 

benefit from competition among their local supermarkets. 

In addition to the appellate victories that I mentioned earlier, we 

recently had two other important wins that I’d like to highlight. In 

North Carolina Dental, we obtained our third Supreme Court win 

in the last 2.5 years when the court affirmed the Commission’s ruling that the State Action Doctrine does not immunize the anticompetitive conduct of unsupervised State boards comprised of private-market participants. This victory is significant because occupational licensing governs a substantial and growing segment of 

the U.S. economy and incumbent providers can use regulations to 

deter new forms of competition. 

Additionally, the Eleventh Circuit agreed with the Commission’s 

decision in the McWane case that a monopolist’s exclusive dealing 

practices violated the antitrust laws by preventing would-be market entrants from becoming meaningful competitors in the market 

for domestic pipefittings. 

The Commission also remains active in research and policy. Next 

month we will hold a workshop devoted to the so-called sharing 

economy to explore how existing regulatory frameworks can accommodate new business models while at the same time maintaining 

appropriate consumer protections and a competitive marketplace. 

The workshop will complement our enforcement and policy work, 

including advocacy work discouraging unnecessary regulations that 

could hamper competition from Uber and other ride-sharing services. 

Finally, on the international front, we routinely engage with our 

foreign antitrust counterparts so that competition laws function coherently and effectively worldwide, benefiting U.S. businesses and 

consumers at home and globally. 

Thank you. And I will be happy to answer any questions. 

[The prepared statement of Ms. Ramirez follows:] 
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50 
51 
52 

Mr. MARINO. Thank you. 

We will now go into the questioning. I recognize myself for 5 

minutes of questioning. I’m going to hold to the 5 minutes for everyone on the dais. 

So, with that, Assistant Attorney General, I will start with you, 

please. 

The Department of Justice closed the public comment period for 

ASCAP or BMI consent decrees in August of 2014, and this is an 

issue this is very, very important to songwriters. 

Could you please tell me what is the status of this review and 

a timeline, if you would, please. 

Mr. BAER. Thank you, Mr. Chairman. 

We are, at the Justice Department reexamining the ASCAP-BMI 

consent decrees to see whether they need to be updated in light of 

new technology, new ways in which people get access to music. It 

is a nonpublic law enforcement investigation, but we did—because 

we’re talking about possibly amending public consent decrees— 

issue a notice, and give an opportunity for comment. 

We received comment from over 250 different entities on these 

changes. My Chief Deputy, Renata Hesse, who is behind me, is in 

charge of the review. She assures me that it is proceeding expeditiously and that we are trying to sort through what updating is appropriate, whether there are problems with behavior that was 

agreed to in conjunction with these preexisting decrees. And while 

we are not ready to make an announcement yet, things are very 

much in progress and we are moving forward. 

Mr. MARINO. A followup on that, please. 

What are the key revisions, if you can share them with us, to the 

consent decrees that DOJ is currently contemplating? And I’m just 

going out on a limb here and assuming that, because of technology 

today, we definitely do need some type of change. 

Would you please respond. 

Mr. BAER. I’m delighted to respond. 

And I think it’s perhaps more appropriate to give a more detailed 

response for the record. I personally am not participating in that 

review because of clients I had when I was in private practice. 

So—— 

Mr. MARINO. Understood. 

Mr. BAER [continuing]. Deputy Assistant Attorney General Hesse 

is handling the review. And if there is an ability for us to provide 

more information while this thing is ongoing, we are glad to do it 

in the form of a response to the question for the record. 

Mr. MARINO. That would be very, very appreciated. 

Mr. BAER. Thank you, sir. 

Mr. MARINO. Commissioner Ramirez, if you would, please, there 

have been reports—excuse me. I want to jump to another question 

for you. 

Last Congress, you maintained that the business community can 

gain sufficient guidance from the pleadings and settlements surrounding stand-alone section 5 prosecutions. 

How can you be so confident that there is sufficient guidance 

contained in the documents surrounding the FTC’s stand-alone 

prosecutions, particularly when these lawsuits rarely reach the 

Federal judiciary? 
53 

Ms. RAMIREZ. Mr. Chairman, as I explained when I testified on 

this issue the last time, in my view, the guidance that the agency 

has provided through its consent orders suffices to provide adequate guidance to the business community about what the touchstone is when we do bring stand-alone section 5 cases. 

And, as I emphasized, it is an area where the Commission exercises considerable restraint. The vast majority of our actions are 

brought under the Sherman Act and the Clayton Act. It is only in 

limited instances that the Commission has acted using its standalone section 5 authority. The touchstone is that we don’t act unless there is harm to competition or harm to the competitive process. 

At the same time, I do understand that there is concern in the 

business community about whether the absence of more formal 

guidance by the Commission chills procompetitive conduct. In my 

view, I have not seen evidence to suggest that, nor have any companies come to visit me. 

And I do have an open-door policy to address this issue or suggest that they have not been able to engage in procompetitive conduct as a result of failure to have more formal guidelines. It is an 

issue that we are thinking about at the Commission and we will 

continue to think about very seriously. 

Mr. MARINO. Okay. I have 30 seconds here. 

It is my understanding—and correct me if I’m wrong—it is possible for a staff member, a staff member, to initiate a conduct investigation against a company without a Commission vote. Is that 

true? And why is that so? Because, as a prosecutor, my staff did 

not initiate any investigations—and I was a United States Attorney—without my consent. 

Ms. RAMIREZ. Mr. Chairman, there is significant management 

oversight over any investigation. But what does occur is that, as a 

preliminary matter, preliminary investigations can commence without a formal Commission vote. 

If there is a significant concern that would lead to a more indepth investigation at that point in time, the Commission would 

then issue a vote in order to authorize staff members to issue compulsory process and proceed with a full-phase investigation. 

Mr. MARINO. My time has expired. I do have very severe reservations about that process. 

With that, the Chair now recognizes the Ranking Member, Mr. 

Johnson, for his questioning. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

General Baer, I have heard reports that three major Gulf airlines 

have received billions in subsidies from their governments over a 

multi-year period, which has allowed these airlines to massively expand their wide-body fleet of aircraft which they are using to penetrate U.S. airline markets with excess capacity, cheap seats, and 

amenities that no other airline can offer because they are not subsidized. 

This is troubling and appears to raise questions concerning their 

use of their dominant positioning of key markets to eliminate competition. I would like your thoughts about it. 

Mr. BAER. Thank you, Mr. Johnson. 
54 

I’m aware of the complaint that Delta, American, and United 

Airlines have filed with the U.S. Government. They obviously are 

entitled to a level playing field. And we have heard from a number 

of Members of Congress on this issue. 

Right now the Departments of Commerce, Transportation, and 

State have asked for public comment on the concerns expressed by 

these three airlines and to evaluate the nature and extent of—arguable—unfair competition. And so we will get feedback. And we 

have offered our antitrust assistance to those three departments as 

they review the comments. 

I think, keeping in mind these concerns expressed by these three 

U.S. airlines, we need to appreciate that what’s happened in 20, 25 

years of open skies is more consumers in the United States have 

more opportunity to fly to more places from more U.S. airports 

than ever was the case before. And what we don’t want to lose 

sight of is the additional opportunity for consumers. 

As I said at the beginning, these airlines, our U.S. carriers, are 

entitled to a level playing field, and we need to make sure that 

playing field indeed remains level. 

Mr. JOHNSON. Thank you. 

Ms. Ramirez, in June, a workshop on the sharing economy will 

be held and you will be considering whether existing regulatory 

frameworks are adequately responsive to sharing economy business 

models and protecting consumer protections. And this workshop 

will have both regulatory and antitrust implications, since it will 

examine the effects of regulations on marketplace competition and 

consumers. 

Given this Subcommittee’s ample jurisdiction over both of these 

issues, please discuss several of the regulatory topics that you anticipate will be discussed at the workshop. 

Ms. RAMIREZ. I’m happy to, Congressman. 

One of the very important functions of the Federal Trade Commission is to have both a research and policy function, and this 

workshop is an example of that. 

Really, what we are trying to do here is to explore the growth 

that we have been seeing in products that are built on peer-to-peer 

platforms. Some of these new business models that we’re seeing 

arise in the context of industries that have traditionally been regulated. 

And the question that we’re trying to explore is how existing regulatory models can apply to deal with appropriately legitimate 

health and safety issues while at the same time ensuring that 

there is sufficient competition and that there aren’t entry barriers 

to new businesses. 

So it really is an exploratory exercise. We are asking for public 

comments in advance of the workshop, and we will be addressing 

the various dimensions of competition and, also, legitimate health 

and safety consumer protection issues that we see in regulations. 

And then, also, we will be seeking public comment following the 

workshop in an effort to enhance our understanding of these issues 

with a goal of being able to provide more informed advocacy, and 

then, if we do identify any competition problems, also to be able to 

take action. 

Mr. JOHNSON. All right. Thank you. 
55 

And since we are kind of strapped for time, I’m going to yield the 

balance of my time. 

Mr. MARINO. Thank you, Mr. Johnson. 

The Chair recognizes the gentleman from Texas, the Vice-Chairman of this Committee, Mr. Farenthold. 

Mr. FARENTHOLD. Thank you very much. 

Mr. Baer, I understand the Chairman’s concerns with respect to 

ASCAP and BMI, and I agree we need to take a look at it. But I 

have some very serious concerns about some of the proposed modifications to the consent decrees. That is easy for me to say. 

How music publishers withdraw their rights from the decree regime, especially on the digital side, brings up several questions 

that I think need to be answered. 

First, the proposed increase in transparency I think is critical. If 

it doesn’t come on the front end, digital distribution service could 

potentially be exposed to massive liability that the publishers have 

exploited in the past. Just last year U.S. District Judge Denise 

Cote identified troubling coordination among the music publishers. 

And while I understand your recusal limits your commenting on 

the situation, as part of what you send back to the Chairman, I 

would like to know explicitly what the DOJ has in mind to ensure 

that transparency enhancements will be fully operational before 

any rights withdrawal happens and that this partial withdrawal 

won’t simply be used to enable further coordination between the 

publishers. 

I would also like to enter into the record this article from The 

Hill, from the Digital Media Association laying out their industry’s 

concerns with the proposed Consent Decree revision. 

[The information referred to follows:] 
56 
57 

Mr. FARENTHOLD. So can I count on you to get me that information? 

Mr. BAER. Thank you, sir. 

I will note that the public comment we issued specifically asked 

for views of folks on transparency, on selective granting of rights, 

on how the rate courts should behave, whether we need rate courts 

or should move to a mandatory arbitration system. And those are 

the issues that were subject to the 250 comments, and those are 

the very core issues that our team is looking at. 

Mr. FARENTHOLD. Well, I look forward to following this issue. It 

is a big one for both sides on the equation. 

Mr. BAER. Thank you, sir. 

Mr. FARENTHOLD. And let’s see. Where do I want to go next? 

Chairwoman Ramirez, on March 13, the FTC approved a rule 

that sets a higher threshold for the Commission to continue administrative merger review cases after the FTC loses a preliminary injunction request in court. 

Why did you all do this rule? 

Ms. RAMIREZ. Let me clarify that it doesn’t set or alter the standard. The Commission has always—if it loses a request for preliminary injunction in Federal court during the course of a merger 

challenge, it has always reviewed whether it is in the public interest to continue the administrative proceeding that is pending concurrently. That has always been done. 

What the rule change did was that it addressed some apparent 

concerns and confusion in the business community about—it goes 

back to a rule that we had in place prior to 2009. 

Mr. FARENTHOLD. So under the SMARTER Act, the FTC would 

be required to pursue injunctions against proposed mergers in 

court rather than through the administrative process. 

Why is the FTC opposed to pursuing these cases in court, particularly in light of the Antitrust Modernization Commission’s recommendation that administrative litigation does not make sense in 

the context of merger reviews? 

Ms. RAMIREZ. Congressman, I think that that aspect of the proposed SMARTER Act really goes and undermines one of the central 

strengths of the Federal Trade Commission and one of the reasons 

that the Federal Trade Commission was created in the first instance, which was to have an expert body of bipartisan commissioners rule on and develop antitrust doctrine. 

And, in my mind, that system has worked well for over 100 years 

now. I think our appellate record—which, if you look over the 

course of the last 20 years, we have won in the antitrust arena 11 

out of the last 13 appeals. 

If you consider the sharing case a win because the Commission’s 

position was vindicated in the activist case, that record, I think, 

speaks for itself. And to undermine the ability of this expert body 

to develop antitrust doctrine would be, in my mind, a mistake. 

Mr. FARENTHOLD. All right. Finally, the FCC has been doing a 

lot lately with respect to net neutrality. It seems like the evil that 

net neutrality is designed to prevent, that is, dominant Internet 

service providers using their market share to block or limit access 

to certain types of material potentially from a competitor, is just 
58 

the type of behavior both consumer protection laws that the FTC 

administers as well as antitrust laws deem to prohibit. 

Would either of you all like to comment on where this fits or does 

not fit and why we would need to go to additional regulations with 

the FTC. Why couldn’t you all do it? 

Mr. BAER. If I may, Mr. Farenthold, antitrust clearly has a role 

in preventing abuse of the way in which content is developed, put, 

and brought into consumers’ homes through Internet service providers and through wireless carriers. 

But there is value, too, to have prospective certainty. If a Silicon 

Valley developer with a great idea knows how he or she is going 

to get information into that pipeline and can be confident it will be 

treated the same as content provided by NetFlix or someone else, 

we are going to get more investment. 

If Internet service providers know what the rules of the game are 

in advance, they are going to be able to observe those rules and ensure that consumers get high-speed access to this tremendous program. 

Mr. FARENTHOLD. I’m way over my time. I appreciate your answer. I may disagree with you. But thank you very much. 

Mr. MARINO. The gentleman’s time is expired. 

The Chair now recognizes the Ranking Member of the full Judiciary Committee for his questioning. 

Congressman Conyers. 

Mr. CONYERS. Thank you, Chairman. 

General Baer, I keep reviewing the American Airlines-US Airways merger, and I’m not as enthusiastic about it as some people 

are, maybe even you. Let’s go over this. 

Were slots awarded to low-cost carriers? And were fares on key 

routes cheaper as a result? To what extent could you assert that 

the consumers have many benefits, sir? 

Mr. BAER. Thank you, Mr. Conyers. I know we talked about this 

the last time I was up here. 

Mr. CONYERS. Sure. 

Mr. BAER. It was the day after we had announced that settlement. 

The preliminary indications from the settlement we entered into 

in November of 2013 are that, in fact, low-cost carriers have dramatically increased their offerings out of DCA, out of Reagan National. There are 40 new flights on bigger equipment. 13 new cities 

are being served. Love Field was just opened up as the Wright 

Amendment expired. 

There has been new service offered by Southwest and by Virgin 

Atlantic, which got opportunity to 2 of the 20 gates available at 

Love Field. There’s new service into Dallas from San Francisco, Los 

Angeles, DCA, LaGuardia. There’s a new form of competition that’s 

been—— 

Mr. CONYERS. What about lower fares? 

Mr. BAER. The data on lower fares are not in yet. DOT collects 

this information, but there is a time lag. And we have a team set 

up to evaluate where we are with respect to fares. 

But by giving companies like Southwest, like Virgin America, 

which compete on a different model—Southwest doesn’t have a bag 
59 

fee—there are indications that consumers are benefiting from the 

divestitures we required. 

Mr. CONYERS. Well, give us some of the results after you finish 

reviewing it, please. 

Mr. BAER. Pleased to, sir. 

Mr. CONYERS. Madam Chairwoman, welcome. 

I’m worried about the SMARTER Act and what it has done in 

the adjudication authority in merger cases. I think it has been an, 

obviously, weakening. 

How do you assess its effect in terms of the policy that FTC promotes? 

Ms. RAMIREZ. Congressman, this proposed legislation is something that I do oppose. As I was mentioning earlier, the reason for 

that is that I think it undermines a central component of what is 

a core strength of the FTC, and that is our ability to develop antitrust doctrine using our administrative process and acting in our 

quasi-judicial role. 

I think that we have done a very good job of protecting American 

consumers, clarifying important antitrust doctrine, and I think the 

evidence of that is, if you look at our appellate record, I highlighted 

in my opening remarks—— 

Mr. CONYERS. There have been some victories. 

Ms. RAMIREZ. Yes. 

Mr. CONYERS. Well, that’s good. 

And I take into consideration that there have been so many decades of lax enforcement that there is a lot of catching up to do. I 

mean, you can’t come in there and straighten things up and tidy 

things around quickly. 

Let me ask you both this last question and your comments. 

Given the accumulating evidence of the adverse effect of mergers 

over decades of lax enforcement, don’t you think that we should 

conduct more reviews to study the effects of the already-consummated mergers and what has resulted from that? Can I ask 

you both that before we leave? 

Mr. BAER. Absolutely, Mr. Conyers. 

I think sound antitrust enforcement includes being willing to 

look back and see what you have learned. And we have learned in 

various markets some of the representations merging parties made 

to us about how much better the world will be, cost savings, no 

price increases. Sometimes those representations have proven not 

to be exactly correct, and that’s a bit of an understatement. 

And so part of our job is to learn from past inquiries. And where 

we have allowed a merger and it doesn’t seem to have worked out, 

that skepticism is fully applied to the next matter that comes before us, and it should be. 

Ms. RAMIREZ. Let me just add briefly that I concur with the remarks that Mr. Baer has made. The FTC just recently launched a 

remedy study during which we will be looking back at the effectiveness of our orders, given, of course, the importance of merger review and analysis. 

Mr. CONYERS. Well, I thank you both. 

And I yield back. 

Mr. MARINO. Thank you. 
60 

The Chair now recognizes the Chairman of the full Judiciary 

Committee, Chairman Goodlatte. 

Mr. GOODLATTE. Thank you, Mr. Chairman. 

I will direct this question to both of you. And, again, thank you 

for being here and for your testimony. 

On February 26 the FCC passed its Open Internet Order which 

classifies broadband Internet access under Title II of the Communications Act. Two Supreme Court Cases, Trinko and Credit 

Suisse, call into question whether an antitrust claim can survive 

against an entity that is heavily regulated. 

So in light of these decisions, how will the FCC rule impact each 

of your antitrust enforcement agencies’ ability to prosecute antitrust violations by any entity that is regulated under Title II? 

Mr. BAER. I’m privileged to go first, Mr. Chairman. 

We have looked very hard at the invocation of Title II by the 

FCC, but because they forebeared—if that’s the right use of the 

term—on much of Title II, we do not think it will have an impact 

on the Antitrust Division’s ability to look hard at both behavior and 

at mergers in this sector. 

I should note that the United States Government is a statutory 

respondent when someone appeals an FCC order. So the FCC lawyers will be defending, and in addition, the Antitrust Division will 

be defending the interests of the executive branch, the United 

States Government. So we are going to need to look hard and closely at the arguments, and they are clearly going to be appealed. 

Mr. GOODLATTE. But that very structure that you just described 

where both you and the FCC team up against some business that 

you are claiming has violated some open access issue is the very 

reason why the Supreme Court issued its opinions in Trinko and 

Credit Suisse. They said, if you regulated industry, you have got 

to be very careful about what antitrust standards you impose 

against it as well. 

As you know, I’m a strong advocate of your antitrust authority 

to keep the Internet open, and I’m very concerned that what is 

going to happen here is that, as the FCC ramps up—and, yeah, 

they have started with what they claim is a light touch—but they 

will ramp up, and, as they do, your authority is going to be diminished. And I think your authority is the more effective one. 

Ms. Ramirez. 

Ms. RAMIREZ. Let me address one issue that impacts the FTC 

specifically, and that is the issue of the common carrier exemption 

to our jurisdiction. 

The Open Internet Order reclassifies broadband service as a common carrier service. A unanimous commission would seek appeal of 

that exemption. And we do urge Congress to eliminate that because, in our view, the common carrier exemption to our jurisdiction no longer has a valid role in today’s world. 

And, in particular, I note that this impacts the consumer protection work that we do. So if I may put this in your minds, I would 

hope that Congress would take action to eliminate that. 

Mr. GOODLATTE. So your solution would be that we should buttress the FCC’s regulation of the Internet and, instead, back off of 

the FTC’s role here or try to go around the Supreme Court decisions and say, ‘‘You can have your cake and eat it too’’ by allowing 
61 

you to be able to use your FTC authority at the same time that 

they regulate the Internet? 

Ms. RAMIREZ. I share Mr. Baer’s view of the application of 

Trinko. I do think that, in order to have robust and adequate protection, in certain instances it does make sense to have the FTC 

use its enforcement authority, particularly—— 

Mr. GOODLATTE. I think in—— 

Ms. RAMIREZ [continuing]. As regards consumer protection. 

Mr. GOODLATTE. I think in many instances it is important for the 

FTC to have that authority, and I think it is going to be impaired 

by the FCC’s action. That’s why there is such a negative reaction 

to this by many of us here in the Congress. 

Recently Commissioner Wright announced that he proposed several definitions of the Federal Trade Commission’s section 5 standalone authority for a vote within the Commission. 

I’ve heard you testify this morning and in your statement that 

you think that the lack of specificity in those standards that you 

have now and pointing us toward actions taken as guidance as opposed to clear written guidance is sufficient. I question that. 

But what is the status of those proposals from Commissioner 

Wright? And are you willing to work with your fellow Commissioner on reaching a consensus definition? 

Ms. RAMIREZ. So let me just clarify my position. I believe that 

the stand-alone authority can be developed using case-by-case development in the same way that the antitrust rules have evolved 

over time. 

In specific response to your question, I’m afraid that I can’t get 

into our internal Commission deliberations. But what I can tell—— 

Mr. GOODLATTE. Can you at least tell us if you are willing to 

work with him? 

Ms. RAMIREZ. What I can tell you is that these are issues that 

we are discussing, and I take very seriously the concerns that 

you’ve raised and that the others in the business community have 

raised. 

Mr. GOODLATTE. Okay. And then, finally, on March 19 of this 

year, The Wall Street Journal reported that the FTC had inadvertently disclosed a portion of the Bureau of Competition’s recommendation to the Commission regarding the Google search investigation that had been closed for over 2 years. 

What steps have been taken to prevent these types of occurrences in the future? 

Ms. RAMIREZ. Let me say that—first, that we regret that inadvertent disclosure. We have conducted a complete review of our 

procedures and put in place several steps to ensure that this does 

not occur again. 

Mr. GOODLATTE. How has this disclosure impacted companies’ 

willingness to provide information voluntarily to the Commission? 

I mean, part of your ability to be effective is to have companies 

entrust you with confidential information that they then will know 

will impact the decision that has made, but also will know that it 

won’t be disclosed. 

Now here it is 2 years after the case is closed and it is disclosed. 

Are they going to be as willing to cooperate as they have in the 

past? 
62 

Ms. RAMIREZ. There’s no question, Mr. Chairman, that this has 

been an unfortunate situation for the agency. It’s vital for us to 

protect the confidential information of the parties that provide us 

with information regarding marketplace conditions. 

And, again, we regret that this occurred. I assure you that we 

have done a very thorough review and put in place a number of different steps to ensure that this does not happen again. 

Mr. GOODLATTE. Thank you. 

Thank you, Mr. Chairman. 

Mr. MARINO. Thank you. 

Before we go and vote, the Chair is going to recognize the congresswoman from Washington, Ms. DelBene. 

Ms. DELBENE. Thank you, Mr. Chair. 

And thanks to both of you for being with us today. 

In the age of the Internet economy now, we have different business models that are challenging old notions of what is viewed as 

anticompetitive behavior. 

In antitrust cases, you, of course, need to define the market you 

are dealing with before you can start to consider whether a company might be violating antitrust laws with respect to that market, 

but Internet companies today are engaging with consumers 

through many different market channels and constantly testing 

and evolving new services for their users. Companies that didn’t 

compete before now are competing in different ways. 

Could you each outline for me kind of how your teams are adapting to what might be called an increasingly amorphous market, 

marketplace, and what challenges you see in carrying out your missions going forward, given these changes. 

We could start with you, Attorney General Baer. 

Mr. BAER. Thank you. 

The antitrust laws, as Chairwoman Ramirez said a second ago, 

are flexible enough that we feel confident that we can apply those 

basic standards to emerging technologies, and we do. 

We have workshops to study. We have brought in people with 

high-tech expertise. Even though things are fast-changing, there 

still is the ability of companies to become near monopolists to enter 

into acquisitions which injure consumers. 

Most recently we brought a criminal case where two firms conspired to adopt the same algorithm, so when someone goes on Amazon search to look for a price for this product, the price would pop 

up as exactly the same. It was price fixing through algorithm on 

the Internet. 

So we are alert to, vigilant in, pursuing behaviors, whether 

they’re online or a smokestack industry that have the potential to 

injure consumers. 

Ms. DELBENE. Chairwoman. 

Ms. RAMIREZ. I concur with the views that have been articulated. 

I also agree that the flexible principles that we have I think can 

be applied to today’s dynamic markets. 

I think the challenge lies in our ability to conduct thorough investigations as efficiently as possible so that, if action is needed, we 

can take appropriate action in a time that makes sense. 

Ms. DELBENE. Even when we have companies that might have 

very different business models may eventually be competing in the 
63 

*Note: The submitted material, a report titled ‘‘Tiversa, Inc.: White Knight or Hi-Tech Protection Racket?’’ is not printed in this hearing record but is on file with the Subcommittee and 

can be accessed at: http://docs.house.gov/meetings/JU/JU05/20150515/103472/HHRG-114- 

JU05-20150515-SD003.pdf. 

same marketplace, but in very, very different ways, you still are 

able to—— 

Ms. RAMIREZ. I believe that we still have an ability to monitor 

these new dynamic marketplaces. Again, the challenge becomes in 

how quickly we can take action while at the same time ensuring 

that we provide appropriate process and be as thorough as we need 

to be. But, in my mind, we can certainly be effective, notwithstanding the dynamic nature of the markets. 

Ms. DELBENE. Attorney General Baer, I wanted to ask you if you 

might comment on the Antitrust Division’s early recognition of the 

pro-competitive benefits of ensuring availability of low-frequency 

spectrum for smaller providers and, you know, kind of what is your 

position relative to the FCC and what they have been focused on 

recently. 

Mr. BAER. The FCC has an active rulemaking or proceeding 

going on to allocate this high-value, low-frequency spectrum to 

wireless carriers. 

We have filed comments on the public record suggesting that one 

of the factors the FCC appropriately should take into account is the 

impact on competition and local markets, that no one or two wireless carriers should be able to get to the position where they dominate wireless availability in a local area and effectively make it impossible for smaller carriers to compete. 

So we are supportive of a level playing field and appropriate 

guidance to the potential bidders for that high-value frequency to 

make sure that we aren’t creating antitrust problems over the long 

run that will have your constituents and others around the country 

paying more for wireless service than they would if the market 

were more competitive. 

Ms. DELBENE. Thank you very much. 

And thank you, Mr. Chair. I yield back. 

Mr. MARINO. Thank you. 

I am going to squeeze Mr. Issa in for questioning. And the rest 

of the panel is welcome to head to the floor and vote. And as soon 

as Mr. Issa’s done, I will do a run over to the floor to get my vote 

in. 

Mr. ISSA. Thank you, Mr. Chairman. Thank you for your willingness to jog with me. 

Madam Chair, I do have a number of questions on the section 

5 authority, but let me just concentrate for a minute on that and 

then move on. 

First of all, I would like to ask unanimous consent at this time 

that the Tiversa report be placed in the record. * 

Mr. MARINO. Without objection. 

Mr. ISSA. Thank you. 

Section 5 authority, as you mentioned—one of your Commissioners, Mr. Wright, clearly is proposing that there be a standard. 

Leaving that alone as to what the standard would be, isn’t it reasonable for us to see from this side of the dais that, if there is no 

standard and the staff is not bringing you votes on particular 
64 

events, then, by definition, the staff is making decisions without 

specific guidance and you are abrogating what should be your authority? 

And I will just put a question in this specifically. Until you have 

specific standards on which to judge, shouldn’t the Commission 

have to be informed and, as appropriate, vote before these actions 

go forward based on what is effectively less-than-sufficient guidance? 

Ms. RAMIREZ. Let me address two issues here, and I want to be 

very clear. First of all, I don’t think it is accurate to say that there 

is no standard. There absolutely is a standard, and the standard 

is whether conduct by companies has an adverse impact on either 

competition or on the competitive process. I think that’s been very 

clearly established—— 

Mr. ISSA. But you use section 5 authority when somebody simply 

gets hacked and their data’s out there based on, ‘‘They are not 

using a sufficient care,’’ on which you have no standard. 

Ms. RAMIREZ. So let me clarify. What you’re talking about has to 

do with our consumer protection authority, which relates to something separate from our unfair methods and competition authority. 

There we are exercising our authority under section 5, which bars 

deceptive or unfair practices. 

Mr. ISSA. Right. But I want to focus this. 

Tiversa, the LabMD case, which was a data breach, which was, 

if you will, failure to maintain personal identifiable information, 

used your section 5 authority. We followed that case. 

So you are clearly using an authority for data breaches and—— 

Ms. RAMIREZ. We are. We’re using—— 

Mr. ISSA. Okay. So now—— 

Ms. RAMIREZ [continuing]. Protection authority—— 

Mr. ISSA. Now that we have established you are using—because 

I have very limited time. 

Ms. RAMIREZ [continuing]. Which is different from what Mr. 

Wright is—— 

Mr. ISSA. Yeah. No. I understand. I understand. But I want to 

stay on section 5 authority and the examples that I have put in the 

record. 

Ms. RAMIREZ. Yes. All of this is within section 5. Let me clarify. 

Mr. ISSA. So, now, back to section 5, you also don’t have a standard for, if you will, the safe haven for data protection. You have 

no outside group that sets standards. You have no specific standards. 

So your standard for going after a company that has a data 

breach is they have a data breach. Isn’t that true? 

Ms. RAMIREZ. No. That’s absolutely not true. 

Mr. ISSA. Okay. If they don’t have—— 

Ms. RAMIREZ. We—— 

Mr. ISSA [continuing]. A data breach, have you done—— 

Ms. RAMIREZ. We have broad over—— 

Mr. ISSA [continuing]. Any section 5 actions for data breaches? 

Ms. RAMIREZ. I’m sorry? 

Mr. ISSA. If there is no leaking of personally identifiable information, you don’t go after them. When you find out they do, you go 

after them. And, yet, you have no standard where someone can say, 
65 

‘‘If I do this,’’ ‘‘If I hire this company,’’ ‘‘If I am ISO 9002,’’ ‘‘if I am’’ 

whatever, ‘‘it is a safe haven.’’ 

So let me go through this process for a moment. In the case of 

many of your enforcements that we have been monitoring, what 

happens is the data breach itself becomes the evidence and, at the 

end of the day, they enter into consent decrees because they want 

you off their back not because they know exactly what they should 

have done to have not had it. 

In the case of Tiversa or in the case of a case that you passed 

on—and I appreciate that you passed on it—it was a free AIDS 

clinic in Chicago who had a data breach that turned out to be 

based on a stolen laptop, the result of a breaking and entering, 

that then Tiversa informed you about, that then Tiversa informed 

their lawyer about, that then that lawyer sued by getting those 

AIDS patients all riled up and suing the AIDS clinic. 

So as we go through this, the question I have for you is: Until 

or unless you have a standard of care for a breach before it happens so that people know that, if they assert this, they have a safe 

haven, which we do in antitrust in most other areas—you can define it—shouldn’t your focus switch to those who mine data, those 

who hack, those whose use of somebody else’s data, in fact, is inappropriate, rather than those, for better or for worse, who get 

hacked? 

And I will close with this. You don’t have the authority to go 

after the State Department, the Veterans Administration, Congress, or any of these other government agencies, all of whom have 

had massive data breaches. 

Why is a data breach in your focus? Is it just because the 

breached company is easy and the hacker is hard? 

So whatever time the Chairman will allow for you to answer. 

Ms. RAMIREZ. If I may. 

Mr. MARINO. Yes, please. 

Ms. RAMIREZ. So I want to clarify that we do have a standard 

when it comes to enforcement actions in the area of data security. 

Companies are required to, under section 5, have reasonable security measures in place to protect consumer information. So 

that’s—— 

Mr. ISSA. That standard has been—— 

Ms. RAMIREZ. And we—— 

Mr. ISSA. We have asked for it, and you haven’t published anything other than those words. 

Ms. RAMIREZ. We absolutely have a standard where we use both 

under deception as well as unfairness. 

Mr. ISSA. Well, we will follow up with any additional information 

you can give us to show where a company can know a safe haven 

so it can be published and they can know what they need to do to 

be immune if there is a data breach and they have met that standard. 

Ms. RAMIREZ. And I would be happy to supply both. We have 

more than 50 cases in this area. We have guidance. And we’re continuing to provide even more guidance to companies. 

Just one more very short point, and that is that I also want to 

make clear that no investigation at the FTC is commenced without 

senior management supervision and there won’t be any conduct 
66 

remedy that is imposed or any remedy of any kind that’s imposed 

without a Commission vote. So I want to clarify that point. 

Mr. MARINO. Thank you. 

We will go into recess to vote. With my apologies, we are going 

to be at least 40 minutes. 

[Recess.] 

Mr. MARINO. The Committee will come to order. 

Again, thank you for your patience. I apologize. 

The Chair now recognizes the gentleman from New York, Congressman Jeffries. 

Mr. JEFFRIES. I thank my good friend and distinguished Chair 

from the great state of Pennsylvania. 

And I thank the distinguished panelists for your service and for 

your presence here today. 

Let me start with Chairwoman Ramirez. We, as the Judiciary 

Committee, have been undertaking an effort to deal with the patent troll phenomenon and to strike an appropriate balance in terms 

of our litigation system in making sure that all actors have access 

to, you know, vindicate their rights pursuant to legitimately held 

patents, but that the process is not abused in a way where you 

have a situation where some defendants are forced to make decisions with respect to resolution not based on the underlying merits 

of the claim, which is what should be the case, but based on the 

high cost of litigating the matter even if, ultimately, they think 

they will be successful. 

And so we are hopefully moving toward closure as it relates to 

that process where we can get a product out of the House and the 

Senate and to the President’s desk. But one aspect that we have 

not addressed, I gather, for jurisdictional reasons in terms of the 

Judiciary Committee side is the demand letter phenomenon. And 

I know that is something that you have been working on. 

And if you could just speak to what your efforts have been and 

what your thoughts are as it relates to dealing with demand letter 

overreach, on the one hand, but also recognizing that it can also 

be a legitimate vehicle pursuant to pre-litigation settlement discussions. 

Ms. RAMIREZ. Absolutely. And I am happy to address that question. And I do think that we have to be careful to ensure that any 

efforts at reform in this area carefully balance the rights of IP 

holders as well as those who are legitimately implementing technology. 

This is something that we have been looking at very closely at 

the FTC, and we certainly stand ready to use our consumer protection authority in this area so that, if there are any practices that 

are deceptive, we will take action. 

In fact, last year we did take action against one particular entity, 

a patent assertion entity, that we alleged was acting deceptively in 

sending out thousands of demand letters to small businesses 

around the country. So it is something that we care very deeply 

about, and we are monitoring the arena vigilantly. 

And with regard to particular legislation, I will say that I generally believe that our current authority is adequate to address the 

situations where you do have deceptive conduct that’s involved, but 
67 

at the same time, we’re certainly happy to work with Congress in 

connection with particular legislation in this area. 

Mr. JEFFRIES. If you can speak to the issue of what was the outcome—or what is the present status of the action that was taken 

with respect to that particular patent assertion entity? 

Ms. RAMIREZ. So we resolved it, and we basically imposed a cease 

and desist order that prohibits this entity from engaging in similar 

unlawful conduct in the future. 

Mr. JEFFRIES. Okay. Thank you. 

And, Mr. Baer, you noted in your testimony that airline competition is vital to the American consumer, and you indicated that you 

have been pleased with the efforts by the Department of Justice in 

terms of ensuring the broadest possible competition within the law 

related to the airline industry. If you can just, you know, add some 

color and context to that assessment. 

Mr. BAER. Sure, Mr. Jeffries. Thank you for the opportunity. 

Essentially, what we have had is consolidation over a number of 

years in the industry. When we took a look at the U.S. Air-American merger and we filed suit to block it, part of what we said in 

that complaint is that the three legacy carriers, now three after 

U.S. Air and American combined, seemed to be engaged in behavior 

that was not fiercely competitive, not what we expect of markets 

that are fully functioning. 

And in trying to figure out what best to do, we made the conclusion that allowing the merger, but giving up gates and slot rights 

at capacity-constrained airports where the different players, the 

discount carriers, the low-cost carriers, were actually coming in and 

driving fares down was the best way to improve what was not a 

terrific competitive dynamic. 

I can’t tell you it’s day and night. Mr. Conyers was really raising 

that question with me earlier. But we are seeing improvement, 

more flights to more places in airports that previously had been basically dominated by Delta, United, and American. So there is improvement, and we are pleased to see it. 

Mr. JEFFRIES. If the Chair would just indulge a brief follow-up. 

Mr. MARINO. You may have all the time that you would like, Mr. 

Jeffries. 

Mr. JEFFRIES. Thank you. 

And I would just urge the Department of Justice and the antitrust shop to continue to closely monitor, you know, the issue, particularly as it relates to pricing, because it does seem, based on 

concerns that have been articulated to me by many of my constituents—and I have got JFK in the immediately adjacent district that 

I represent—that, amongst the major airlines, the prices don’t 

seem to differ significantly in a way that would suggest that there 

is real competition. 

And then there was also significant concern that, as we experienced toward the end of last year and earlier this year a dramatic 

decline in fuel prices, that there was no similar impact on airfare. 

And one might expect, in fact, that some of the benefits of the reduced fuel costs would be transferred to consumers, and there was 

no evidence that that took place. And I would just urge the Department of Justice to do what they can to continue to monitor the situation aggressively. 
68 

Mr. BAER. You have my commitment. 

Mr. JEFFRIES. Thank you. 

Thank you, Mr. Chair. 

Mr. MARINO. Thank you. 

I am going to have one more question, and the Ranking Member 

is going to have another question, because I sort of feel a little 

guilty making you wait almost an hour and then saying we are 

done with you. Do you mind if we do that? Okay. 

I am going to defer to the Ranking Member. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

Attorney General Baer, in its brief, the Antitrust Division—well, 

let me start. First, arbitration agreements are pervasive in society, 

affecting countless Americans every year. This issue has concerned 

me since I first introduced legislation to prohibit forced arbitration 

agreements back in the 110th Congress. 

As I mentioned in my opening statement, the brief for the United 

States in Italian Colors noted that private actions are important to 

supplementing the government’s civil enforcement efforts under the 

antitrust laws as administered by both the Justice Department and 

the FTC. 

Attorney General Baer, in its brief, the Antitrust Division argued 

alongside the Solicitor General that the United States has a substantial interest in ensuring that arbitration agreements not prevent the redress for violations of Federal statutory rights, including 

those enumerated by the antitrust laws. 

In the wake of Italian Colors, how has the court’s decision affected the ability of antitrust plaintiffs to enforce important statutory rights in court? 

Mr. BAER. Well, the reason the Justice Department, the Antitrust Division, took the position it did in Italian Colors, a position 

that did not prevail in the Supreme Court, was concern that the 

imposition of mandatory arbitration rights on consumers could 

limit their access to the courts and, basically, result in an imbalance in disputes between consumers and big business. 

But Italian Colors is the law of the land, and it is an adjustment 

that private plaintiffs and their lawyers are seeking to address 

going forward. It is an imperfect world in which we operate, I am 

afraid. 

Mr. JOHNSON. Basically getting adjusted to the fact that forced 

arbitration is the reality? 

Mr. BAER. Yes, sir. And I appreciate the concerns that underlie 

the legislation you are sponsoring. 

Mr. JOHNSON. Thank you. 

I yield back. 

Mr. MARINO. Thank you. 

General, I wanted to ask you a question about the international 

antitrust enforcement actions, if you would, please. 

There have been reports that China is using its antitrust laws 

to advance its own industrial policies—and I actually just read another report that was even more descript about this—at the expanse of intellectual property rights, particularly rights of American companies. 
69 

How does DOJ—as a matter of fact, FTC can respond to this as 

well—coordinate with other executive agencies on issues of international antitrust enforcement? 

And I am just going to throw out another follow-up question that 

you will probably answer anyhow. 

To have foreign countries applying antitrust laws in protectionist 

manners, how does your agency and each other agency respond to 

address the issue as well? 

Mr. BAER. Let me give sort of three levels of answer. 

First, there is a very active process within the executive branch 

to make sure these issues are identified and presented at the highest levels. When President Obama went over to meet the president 

of China in November, that was on his agenda, fair, non-discriminatory enforcement of the antitrust laws. 

There’s been follow-up at secretary-level meetings between senior 

officials of the Chinese Government, vice premier level, and senior 

officials in the Obama administration to make sure that we get 

commitments from those agencies that enforce the Chinese 

antimonopoly law, that they will do so in a fair and transparent 

and non-discriminatory fashion. We have received some of those assurances, and we are hopeful that they will be honored. 

The third level is the two of us are extraordinarily committed to 

working with the antimonopoly law enforcers. There are three 

agencies over there. You think it is interesting that there are two 

here. Well, there are three over there, and we work with all three. 

We have been to China. We have met with their senior leadership. The head of their merger enforcement agency will be in town 

next week. The two of us are meeting with him in my office on 

Monday morning to talk about these issues, talk about remedies, 

talk about fairness. 

So it is very much a priority for this Administration and for the 

antitrust enforcers in the United States. 

Mr. MARINO. Recently I just read an in-depth article, a report, 

actually, about China flexing its muscle with U.S. companies on 

what China’s calling antitrust issues concerning their laws. 

And in return for not pursuing things further, it is, to me, armtwisting with these companies, saying:If you give us licensing to 

something that we are interested in, if you give us the right to perform any testing or research needed here in our country and in our 

laboratories, we will forego any further, for the lack of better term, 

general prosecution or fines or even as much as removing the company from the country. 

What say you about that? 

Mr. BAER. Well, it is a concern. We’ve heard from U.S. business 

interests. We’ve met with U.S. companies that have those concerns 

to make sure we understand. Where we think it appropriate, where 

we think the concern is legitimate, we’ve communicated those concerns to our counterparts in China. 

At the risk of being controversial, not all complaints that one 

hears from U.S. companies or foreign companies are automatically 

three-dimensional, valid, take everything into account. 

So one of the things we try to do is sort through what we think 

appears to be a legitimate concern on the part of a U.S. company 

and communicate that. To the extent we think it is appropriate en-
70 

forcement, the sort of enforcement actions we would take here, we 

let the companies know. 

So we’re trying to nuance this and encourage the—I said in my 

prepared testimony one of the things that we export well from the 

United States is sound antitrust competition policy. It is a big item 

of commitment for the both of us and our teams. 

Mr. MARINO. It is a complex tightrope to walk. And can you give 

an example of how we are attempting—other than through negotiations, what we can use sometimes as a hammer over their heads, 

saying, ‘‘If you continue this, these repercussions may occur.’’ 

Mr. BAER. As antitrust enforcers, I think we don’t have many 

hammers. 

Mr. MARINO. Right. 

Mr. BAER. And it would be inappropriate, I think, as a law enforcement function, to threaten retaliation that is not on the merits. Right? 

Most countries that we work with that are developing antitrust 

enforcement regimes want to be respected. They want to be fair. 

There is a temptation, as new laws develop, maybe to tilt the playing field in favor of the home team. And where we think that is 

going on, we communicate it. 

Many of these communications are bilateral and confidential. We 

want to respect their process, encourage them to aspire to international norms of good competition enforcement. And that is a 

large part of what we do. It is below the radar, as is appropriate 

when law enforcement officials are talking to one another. 

Mr. MARINO. I do think also another method could significantly 

improve the situation if—and I am sure this goes on to a certain 

extent—other countries joined with the U.S. to suggest to China 

that this could hurt your reputation around the world as far as 

being a trading partner. 

Mr. BAER. It is helpful. And we work with our counterparts. A 

great example is the European Union, who also have a strong bilateral relationship. 

And we share concerns and are transparent with one another 

about our discussions, whether it be with China, India, any competition authority which is beginning to develop an enforcement regime. 

Mr. MARINO. Thank you. 

Commissioner, do you have any response to any of my questions 

pursuant to this? 

Ms. RAMIREZ. I echo the same comments that Mr. Baer has 

made. These issues are very important. We do engage on an international level. And we think that it really impacts, you know, the 

legitimacy of international enforcers around the world when fair 

processes aren’t used during the course of investigations and when 

actions are taken that are not supported by sound evidence showing anticompetitive conduct. 

So these are messages that we’ve been communicating internationally. We’ve been communicating them on an individual basis 

with counterparts not only in China, but in other parts of the 

world. 

And as part of our multilateral efforts, in fact, we work a great 

deal with something called the International Competition Network. 
71 

And we have just produced some guidance on investigative procedures that, in our mind, are important and good best practices to 

utilize during the course of antitrust investigations. 

So these are important issues, and we’re certainly keeping an eye 

on them. 

Mr. MARINO. Good. 

I have one more question for you, Commissioner, but I would like 

if you could send it to us in writing. And I’m just going to read it 

for the record, but we will submit to you the question in writing 

so your staff doesn’t have to sit back there and start writing everything down. 

At this Committee’s last oversight hearing in November of 2013, 

I personally asked you about the merger between Express Scripts 

and Medco. I was concerned that it may lead to anticompetitive effects within the pharmacy market. 

At the time, you stated that, ‘‘There hasn’t been much time that 

has elapsed,’’ and you weren’t aware ‘‘of any evidence of there being 

anticompetitive conduct.’’ 

Now that we have had more time to evaluate the market postmerger, 3 years have now passed since the merger occurred, one 

of your colleagues has also raised concerns that there is insufficient 

competition in the PDM market. 

For the sake of time, could you please provide in writing a response to the following question: Can you now report on whether 

or not this Express Scripts-Medco merger has led to any anticompetitive effects on the PDM market? And, in addition, could you 

provide the Commission’s overall view of the market. 

Ms. RAMIREZ. I would be happy to give you a response in writing. 

Mr. MARINO. Thank you so much. 

Mr. Ranking Member, anything else? 

Mr. JOHNSON. I am good. 

Mr. MARINO. Okay. This concludes today’s hearing. 

I want to thank the witnesses very, very much and the people 

in the audience for waiting for as long as you had to. 

Without objection, all Members will have 5 legislative days to 

submit additional written questions for the witnesses or additional 

materials for the record. 

Again, thank you all very much. This hearing is adjourned. 

[Whereupon, at 11:27 a.m., the Subcommittee was adjourned.] 

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A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
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Response to Questions for the Record from the Honorable William J. Baer, 

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