Robert Pitofsky, 1929 – 2018

By Brooksley Born
Based on Robert Pitofsky’s Oral History for the D.C. Circuit Historical Society

Robert Pitofsky was a leading authority on the U.S. antitrust laws and a champion of consumer protection. An outstanding law professor, government official, and private practitioner, he was Dean of the Georgetown University Law Center, Chairman of the Federal Trade Commission, and long-time of counsel at Arnold & Porter. The current FTC Chairman Joseph J. Simons was quoted in Mr. Pitofsky’s New York Times and Washington Post obituaries as saying he was “one of the true giants of his field” who helped to establish “a strong bipartisan consensus on how to do antitrust enforcement and policy.”

Mr. Pitofsky was born in 1929 in Paterson, New Jersey, to parents of modest means and was a child of the Depression. He attended New York University and graduated with Honors in English and History in 1951. He then entered Columbia Law School where he served on the law review. Upon graduation in 1954, Mr. Pitofsky was drafted into the Army and was stationed in Munich, Germany, where he served for two years.

After a year in the Honors Program at the Department of Justice, he became an associate at Dewey, Ballantine, Bushby, Palmer & Wood in New York City in 1957. His first assignment at the firm was a criminal price-fixing case against Eli Lilly, where he became the junior member of a large team of lawyers led by former New York Governor Thomas Dewey. They prevailed in the trial, and the case left Mr. Pitofsky with a deep and abiding interest in the antitrust laws.

Mr. Pitofsky worked at Dewey Ballantine for seven years, spending ninety percent of his time on antitrust cases. He also began to teach antitrust law at New York University Law School as an adjunct professor. During this time he married his wife Sally, who had been an English major at Vanderbilt University and was working at a publishing house.

Because he loved the teaching he was doing and wanted to be able to engage in scholarly research and writing, Mr. Pitofsky began teaching full time at NYU in 1964, but continued to do antitrust work part time at Dewey Ballantine. He taught antitrust and consumer protection at NYU until 1970. During this time he became a co-author of a leading antitrust casebook, Cases and Materials on Trade Regulation, with Milton Handler, Harlan Blake, Diane Wood, and Harvey Goldschmid. The most recent edition is still widely used in law schools throughout the country.

In 1969 Mr. Pitofsky was asked to become Counsel to an ABA Commission to Study the FTC, which had been created at the request of President Richard Nixon to investigate the effectiveness of the Federal Trade Commission in light of a recent scathing critique by Ralph Nader. The Commission was chaired by Miles Kirkpatrick, the chair of the ABA Antitrust Section, and had a number of other distinguished members of the antitrust bar.

Mr. Pitofsky led the effort of conducting an investigation of the FTC and drafted the Commission’s Report, which was adopted by 15 of the 16 Commission members. The Report concluded that the agency should be maintained but reformed. The report made a number of recommendations for reform including adopting new remedies designed to prevent violators from benefiting from their wrongdoing, prioritizing important cases to pursue, upgrading the staff, and studying fraud in urban ghettos.

Miles Kirkpatrick became the Chairman of the FTC in 1970 and invited Mr. Pitofsky to become the first director of its newly established Bureau of Consumer Protection, giving him the opportunity to work to implement the reforms the Report had recommended. Under his leadership, the new Bureau led the way to reform national advertising, conducting a study on misrepresentation in the industry, adopting corrective advertising as a remedy, and encouraging the industry to adopt a successful self-policing regime.

In 1973 Mr. Pitofsky returned to teaching antitrust law, now at Georgetown University Law Center. He also became of counsel at Arnold & Porter, working on antitrust cases. Building on his experiences at the FTC, he published a ground-breaking article on consumer protection in the Harvard Law Review, Beyond Nader: Consumer Protection and the Regulation of Advertising. President Jimmy Carter nominated him in 1978 to a term as a Commissioner of the FTC, where he served for three years before returning to Georgetown and Arnold & Porter.

Mr. Pitofsky was appointed Dean of Georgetown University Law Center in 1983 and took the lead in obtaining the funding for a new law library building and overseeing its construction. This was the first step in a building program that significantly expanded the physical facilities of the law school.

President Bill Clinton appointed Mr. Pitofsky Chairman of the FTC in 1995. He successfully recruited an outstanding senior staff and many very able young lawyers. Under his watch, the FTC conducted a study of the impact of global competition and high-tech innovation on the markets, resulting in more clearly defining the availability of an efficiency defense with respect to certain mergers.

Mr. Pitofsky prioritized enforcement actions over rulemaking efforts by the agency and worked to expand effective remedies such as disgorgement and restitution in fraud cases. Under his direction the agency emphasized issues of Internet fraud and consumer education and held hearings resulting in Congressional legislation protecting children’s privacy on-line. During his tenure the FTC dealt with a large number of mergers, bringing 14 cases to enjoin mergers and winning 12 of them. Other mergers were permitted only after requiring some restructuring.

Stepping down from the FTC in 2001, Mr. Pitofsky returned to Georgetown Law Center and Arnold & Porter, where he continued teaching antitrust law, editing his casebook, writing scholarly articles, and advising antitrust clients. He led the search for a new Dean of the law school in 2004. He received the FTC’s Miles W. Kirkpatrick Award for Lifetime FTC Achievement in 2002 and the Department of Justice’s John Sherman Award in 2010 for his lifetime contributions to the teaching and enforcement of antitrust law and the development of antitrust policy.

Mr. Pitofsky died on October 6, 2018, and was survived by his wife Sally, three children, and seven grandchildren.

BIOGRAPHY – September 2001

Education
New York University, B.A., 1951 , Phi Beta Kappa, Honors in English and History
Columbia Law School, LL. B., 1954, Columbia Law Review

Other Academic Experience
Guest Scholar, Brookings Institution, 1989 – 1990
Resident Scholar, Rockefeller Study and Conference Center, Bellagio, Italy, 1990
Visiting Professor of Law, Harvard Law School, 1975 – 1976
Faculty Member, Salzburg Seminar in American Studies, Salzburg, Austria, 1975

Honors
Doctor of Laws (Honorary), Georgetown University, 1989
Selected by Time Magazine as one of ten outstanding mid-career law professors, 1977
Distinguished Service Award, Federal Trade Commission, 1972

2001- Present
Professor of Law, Georgetown University Law Center
Of Counsel, Arnold & Porter

1995 – 2001
Chairman, Federal Trade Commission

May 1981 -June 1983 and July 1989 – 1995
Professor of Law, Georgetown University Law Center
Of Counsel, Arnold & Porter

July 1983 -June 1989
Dean and Executive Vice President for Law Center Affairs, Georgetown University Law Center

July 1978 – April 1981
Commissioner, Federal Trade Commission

1973 – 1978
Professor of Law, Georgetown University Law Center
Of Counsel, Arnold & Porter

1970 – 1973
Director, Bureau of Consumer Protection, Federal Trade Commission

1963 – 1970
Professor Law, New York University School of Law

1957 – 1963
Attorney, Dewey, Ballantine, Bushby, Palmer and Wood, New York City

1956 – 1957
Attorney, Department of Justice, Washington, D.C.

Professional Activities
Commission Counsel to the American Bar Association, Commission to Study the FTC (Report issued Sept. 15,1969).
Chairman, Committee on Consumer Protection, Antitrust Section of the American Bar Association (1970 – 1972).
Chairman of the Board of Directors, Institute for Public Interest Representation, Georgetown University Law Center (1973 – 1978).
Member of the Board of Directors, Society of American Law Teachers (1973 – 1977).
Member of the Task Force on Regulatory Reform, U.S. Senate Government Operations Committee (1975 – 1977).
Member of the Council, Administrative Conference (Presidential Appointment) (1980 – 1981).
Chairman of the Antitrust Section, AALS (1971 – 1972 and 1982 – 1983).
Member of the Board of Advisers, Columbia University Center for Law and Economic Studies (1975 – 1995).
Chairman of the National Institutes, Antitrust Section of the ABA (1982 – 1983).
Member of the Board of Governors, District of Columbia Bar Association (1981 – 1984).
Chairman of the Advisory Board, Georgetown Study of Private Antitrust Litigation (1984 – 1985).
Member of the Council, Antitrust Section of the ABA (1986 – 1989).
Member of the Board of Directors, Craig Corporation (1986 – 1992).
Member of the Special Committee on Gender Bias in the Courts, District of Columbia Bar Association (1987 – 1990).
Member of the Committee on the FTC, Antitrust Section of the ABA (1988 – 1989).
Chair, Clinton Administration Transition Team Reporting on Antitrust Division of the Department of Justice, Jan. 1993.
Chair, Defense Science Board Task Force on Antitrust Aspects of Defense Industry Downsizing, March 1994.
Member, Washington Advisory Committee to Lawyers Committee on International Human Rights (1992 – 1995).
Member, American Law Institute (1983 – Present)
Fellow, American Academy of Arts and Sciences (2000 – Present).

Publications
Co-author of Cases and Materials on Trade Regulation (with Milton Handler, Harlan M. Blake, Harvey Goldschmid), Foundation Press (4th ed. 1995) (Supplement 2001)
Co-author of Cases and Materials on Antitrust (with Harlan M. Blake), Foundation Press 1967 (Supplement 1969)
Co-author of Antitrust Division and Federal Trade Commission Antitrust Policy, Chapter 3 in Changing America: Blue Prints for the New Administration (with Eleanor Fox), New Market Press (1992)
Co-editor of Revitalizing Antitrust in its Second Century (with Eleanor Fox and Harry First), Quorum Press (1992)
Federal Trade Commission Investigations, Chapter 48 in Antitrust Counseling and Litigation Techniques (with Merrick Garland) (vofialinowski, ed., 1984)
Antitrust and Intellectual Property, Unresolved Issues at the Heart of the New Economy, 16 Berkley Tech L.J. 535 (2001)
Proposals for Revised United States Merger Enforcement in a Global Economy, 8 1 Geo. L.J. 195 (1992)
New Definitions of Relevant Market and the Assault on Antitrust, 90 Colum. L.Rev. 1805 (1990)
The Renaissance of Antitrust, 45 The Record of the Association of the Bar of the City of New York, 85 1 (1990)
Co-author of Antitrust Merger Policy and the Reagan Administration, (with Thomas G. Krattenmaker) 33 Antitrust Bulletin 2 1 1 (1988)
Introduction to the Antitrust Alternative (with Eleanor M. Fox), 62 N.Y.U. Law Review 93 1 (1987)
Antitrust in the Next 100 Years, 75 California L. Rev. 817 (1987)
Change in Administration, Change in Antitrust, Antitrust Magazine 24 (Winter, 1987)
A Framework for Antitrust Analyses of Join Ventures, 74 Geo. L.J. 1605 (1986), also published in 54 Antitrust L.J. 893 (1985)
Too Many Lawyers, Proceedings of the 45th Judicial Conference of the D.C. Circuit 305 (1984)
Why Dr. Miles Was Right, Regulation Magazine 27 (Jan./Feb. 1984)
In Defense of Discounters: The No-Frills Case for a Per Se Rule Against Vertical Price Fixing, 71 Geo. L.J. 1487 (1983)
Antitrust at Justice, 5 Justice Watch 7 (1982)
Giving the Giants More Leash, 3 Speaking of Japan 37 (1982)
Competition and Regulation, 77 Conference Bd. Bulletin 7 (1980)
Experience Curve Strategies and Antitrust, 90 Conference Bd. Bulletin 10 (1980)
The Political Content of Antitrust, 127 U. Pa. L. Rev. 1051 (1979)
The Sylvania Case: Antitrust Analysis of Non-Price Vertical Restrictions, 78 Colum. L. Rev. 1 (1978)
Beyond Nader: Consumer Protection and the Regulation of Advertising, 90 Harv. L. Rev. l (1978)
The FTC Improvements Act, 45 Antitrust Law Journal 117 (1976)
Advertising Regulation and the Consumer Movement, Part One of Issues in Advertising (AEI Publication, Tuerck ed., 1975)
Changing Focus in the Regulation of Advertising, Chapter 7 in Brozen, Advertising and Society, University Press, 1974
Regulation Under Fire; Consumers, the Environment, the Economy, and the Impact of Change: A Panel, 8 Columbia Journal of Law & Policy Problems 33 (1971)
Arbitration and Antitrust Enforcement, 25 Arbitration Journal 40 (1970)
Marketing and Franchising Antitrust Prognosis for the 70’s: A Panel, 39 A.B.A. Antitrust Law Journal 502 (1969-1970)
Joint Ventures Under the Antitrust Laws: Some Reflections on the Significance of Penn-Olin, 82 Harv. L. Rev. 1007 (1969)
Is the Colgate Doctrine Dead? Affirmative of the Debate, 37 A.B.A. Antitrust Law Journal 772 (1968)
Co-author of Antitrust Consequences of Using Corporate Subsidiaries (with Everett I. Willis), 43 N.Y.U. L. Rev. 20 (1968)
Book Review: Regulatory Bureaucracy by R.A. Katzman, 90 Yale L. Reb. 726 (1981)
Book Review: Invitation to an Inquest by Walter and Miriam Schneir, 65 Colum. L. Rev. 608 (1966)
Book Review: In A Few Hands: Monopoly Power in America by Estes Kefauver, 40 N.Y.U. L. Rev. 816 (1965)

Courtesy of the Pitofsky  Family

Oral Histories of the D.C. Circuit Courts