In late May, the Federal Trade Commission promoted Patty McDermott to Deputy Assistant Director of the Anticompetitive Practices (ACP) division. The ACP division’s work “involves not only stopping illegal conduct but also shaping the law,” making McDermott’s new position one of interest to corporations overseen by the FTC, beyond run-of-the-mill enforcement.
Immediately before her promotion, McDermott worked in the Health Care division of the Bureau of Competition. That division works on the Bureau’s cases against physicians, healthcare providers, insurers and pharmaceutical companies. McDermott’s initial hire by the Health Care division appears to have been based on her experience with pharmaceutical clients in the private sector. Indeed, it appears that she had a pharma client right before she joined the FTC in 2014. From 1999 to May 2014, McDermott worked as a senior attorney for BigLaw firm Cleary Gottlieb. There, she represented pharma giant Sanofi as recently as April 2014, when its competitor Eisai alleged that Sanofi locked in exclusive deals with hospitals to use Sanofi’s Lovenox product, blocking out competitors. The case was eventually thrown out in 2016 when the Third Circuit court found that Sanofi’s deals didn’t foreclose competition.
Bureau of Competition head Ian Connor’s announcement of McDermott’s promotion emphasized her leadership in the FTC vs. AbbVie case. The case was based on a 2014 FTC complaint against pharmaceutical giant Abbvie for blocking generics to its Androgel prescription product. The FTC has long attempted to rein in pharma companies by blocking their attempts to ward off generic competitions to patented products; the Wall Street Journal called that record “mixed”. The FTC originally sought $1.32 billion for compensating consumers that were deprived of generics of AndroGel for more than two and a half years. The drug generated more than $1 billion in sales at its peak before generic competition entered the market. Ultimately, the FTC ended up settling for only $448 million in compensation for consumers, a hefty discount from the original complaint. (To be fair, the monetary award was the largest ever awarded in a litigated FTC antitrust case.)
McDermott filled the vacancy left by Barbara Blank when Blank left the FTC in April for a job shepherding Facebook through the FTC’s investigation of the Big Tech company’s past acquisitions. In the ACP, McDermott will be further honing her expertise in intellectual property rights as well as “immunities from and exceptions to the antitrust laws,” skills that will surely make her even more poachable to private interests. FTC Bureau of Competition lawyers often move to jobs defending corporate interests; the Revolving Door Project’s research revealed that 41 of 81 lawyers worked for BigLaw firms after leaving the FTC, and another 11 individuals became counsel for acquisition-fueled corporations.
McDermott’s promotion is a prime example of the FTC’s reliance on lawyers with entrenched private interests; her work prior to the FTC was to protect companies from allegations of anti-competitive behavior. Career work at the FTC — i.e., “career” in the sense of people holding a job until they retire– might be more attractive if elite jobs such as the Deputy Assistant Director of the Anticompetitive Practices (ACP) division didn’t go to BigLaw veterans like McDermott.
But the FTC is far from restoring the true meaning of “career” to career jobs. It’s our ongoing analysis of patterns at the FTC that informs our confident speculation that McDermott will eventually return to BigLaw or some other corporation overseen by the FTC. Just look at the corporate path of her professional predecessor and many other lawyers at the FTC. In any case, the FTC’s habitual elevation of lawyers from the corporate world means that antitrust enforcement is not only swayed by revolving door officials, but even hopeful public servants are incentivized to keep corporate interests at heart.