Antitrust — Resume
NEIL WARNER AVERITT
Harvard College (B.A. 1968) (government)
London School of Economics (M.Sc. 1969) (strategic studies)
Harvard Law School (J.D. 1972) (Law Review, Note Editor)
Legal analysis columnist, FTC:Watch (currently)
Federal Trade Commission (37 years) (variety of functions)
Associate, Ropes & Gray, Boston (concentration in antitrust litigation and counseling)
Law clerk, U.S. District Court for the Virgin Islands (Fountain Valley murder cases)
Neil.Averitt at gmail.com
(202 area code) 607-9008
Principal accomplishments at the FTC:
I had a long and varied career at the agency, helping to shape both antitrust and consumer protection laws, and becoming the person most familiar with the relationships between these two parts of the agency statute. I also worked to integrate national competition policy by studying the agency’s relationships with state regulatory programs and with the Antitrust Division of the Department of Justice.
I was a principal architect of three important developments in competition policy.
(1) I brought new definition and precision to the broad language of the FTC Act, by drafting policy statements defining “unfair acts or practices” and “unfair methods of competition.” The first of these statements was formally adopted by the agency; the second has been published as a proposal.
(2) I brought new attention to the neglected second part of the test for state-action antitrust immunity, which asks whether any private market power is actively supervised by the state government. The development of this second prong culminated in the important Supreme Court case of North Carolina Board of Dental Examiners v. FTC, which extended the supervision requirement to state licensing boards.
(3) I helped to broaden the range of antitrust concerns away from a simple focus on price and efficiency, by calling attention to important nonprice effects of challenged business conduct — such as effects on variety, choice, quality, and innovation. These new considerations were brought together under the label of “consumer choice.”
Specific positions and projects at the FTC
Acting Assistant Director for Planning (Bureau of Competition).
Member, State Action Task Force, whose report was followed by a unanimous Supreme Court in the Phoebe Putney case (2013), and by a 6-3 majority of the Court in North Carolina Board of Dental Examiners (2015).
Had particular responsibility within the Task Force for the issue of how states must actively supervise actions of private parties to ensure fit with state policy.
Organized cases including Kentucky Household Movers and North Carolina Dental Examiners to clarify these issues. Kentucky Movers identified the procedural requirements for supervision. North Carolina Dentists established that professional licensing boards are among the private interests that need to be supervised. The North Carolina case was affirmed by the Supreme Court in 2015; there I wrote an amicus brief, in my private capacity, to elaborate on how states could practicably comply with the FTC’s proposed principle, and I believe this was an important factor in winning the case for the agency.
Drafted the formal FTC policy statement defining “unfair” consumer practices, at the request of Commissioner Robert Pitofsky (Democrat), which was adopted by a unanimous Commission (1980).
Drafted the FTC opinion in International Harvester, which first applied that statement.
The consumer unfairness statement ended most controversy on that issue, and was used by Congress in amending FTC Act and as a model in drafting the legislation creating the Consumer Financial Protection Bureau.
Organized the FTC workshop (2008) to consider the scope and meaning of the other half of Section 5, involving “unfair methods of competition,” at the request of Commissioners Tom Rosch (Republican) and Jon Leibowitz (Democrat).
Drafted a proposed agency policy statement to formally define unfair competition, which was published in the Antitrust Source magazine.
Wrote agency policy papers on exclusive dealing, supermarket slotting allowances, and hospital mergers.
Served as Attorney Advisor to Commissioner George Douglas (Republican).
Served as Special assistant to Acting Chairman Terry Calvani (Republican) (work focusing on vertical and distributional restraints, such as Robinson-Patman Act).
Special projects elsewhere:
Was detailed as antitrust counsel to the Advisory Commission on Conferences in Ocean Shipping, whose report recommended whether and on what terms international ocean cargo carriers should retain their antitrust immunity for agreements setting common rates.
Developed a proposal for a “frontier area,” a new kind of National Park that would replicate the nineteenth century frontier on a landscape-wide scale on a tract of federal land in the Southwest. (For details see here.)
Wrote the book, The Single Gospel, which was published by Wipf and Stock in 2015. This edits the four accounts of Matthew, Mark, Luke and John into a single narrative in chronological order. Explanatory footnotes and endnotes allow the book to be read in a variety of ways: as a text of faith, or a great work of literature, or a historical account of First Century Judea. (For details see here.)
Columns at FTC:WATCH
I have written columns every two weeks on a variety of topics. However, I have paid particular attention to the issues of defining “unfair methods of competition” under Section 5; the emerging theory that the agencies’ role is to protect “consumer choice;” and the need for both of the agencies to be more purposeful and systematic in their policies.
The Meaning of “Unfair Methods of Competition” in Section 5 of the FTC Act, 21 Bos. Coll. L. Rev. 227 (1980).
The Meaning of “Unfair Acts or Practices” in Section 5 of the FTC Act, 70 Georgetown L.J. 225 (1981).
Consumer Sovereignty: A Unified Theory of Antitrust and Consumer Protection Law, 65 Antitrust Law Journal 713 (1997) (with Robert Lande).
Using the “Consumer Choice” Approach to Antitrust Law, 74 Antitrust Law Journal 175 (2007) (with Robert Lande).
The Elements of a Policy Statement on Section 5, Antitrust Source (Oct. 2013).