Legal Review May: A Full Slate for the FTC?

Legal Review
Randal M. Shaheen

Amy MudgeIt appears likely that — for probably the first time since the Federal Trade Commission (FTC) was established — we will have five new commissioners in the same calendar year. Earlier in 2018, only two of the FTC’s five seats were filled. Terrell McSweeny’s term expired, and she left the Commission on April 27. Maureen Ohlhausen, who began the year as acting chair, has been nominated for a position on the federal bench and is expected to leave once she is confirmed by the Senate. 

The Process

FTC commissioners are nominated by the President and confirmed by the Senate for a term of seven years, subject to the rule that no more than three commissioners may be from the same political party. The President also designates who is to serve as chair. Note that the seven-year terms are set — rather than running from when an individual is confirmed — so that some nominees will fill remaining shorter terms.

To date, four individuals have been nominated, passed through the Senate Commerce Committee, and sworn in. In addition, the Trump administration nominated a fifth commissioner, who is confirmed and awaiting Ohlhausen’s departure.

The New Leaders

Joseph Simons (R) became chairman on May 1. He was nominated to take McSweeny’s seat, with a term that expires in 2024. Simons is a highly regarded antitrust lawyer and has worked in this for most of his professional career. Before that, Simons served at the FTC as the director of the Bureau of Competition (as head of antitrust enforcement) from 2001-2003. During his tenure the FTC was active in both merger and non-merger enforcements. Prior to that, he was a partner at law firm Clifford Chance, and earlier in his career he was the Bureau of Competition’s Associate Director for Mergers and Assistant Director of Evaluation. Simons is generally regarded as having a strong interest in bringing economic analysis to bear on antitrust law and his published articles reflect this. He is not believed to have much in the way of consumer protection experience.

Noah Phillips (R) comes to the FTC from the Senate, where was chief counsel for Sen. John Cornyn (R-TX) at the Senate Judiciary Committee. He fills a seat for a term that expires in 2023. Phillips was at the Senate since 2011, and his work in that role touched on issues related to the FTC, including antitrust matters and oversight of the agency. Earlier in his career, Phillips clerked on the Fifth Circuit before practicing in the private sector at Cravath, Swaine and Moore, and later at Steptoe and Johnson. Phillips is listed as a “contributor” on the website for the Federalist Society, an organization that advocates conservative principles in the legal profession.

Christine Wilson (R) is a senior vice president at Delta Air Lines. She has been confirmed to take over Ohlhausen’s seat. At Delta, she leads the legal and regulatory teams, but Wilson has self-described her specialty as antitrust law. She has been recognized by publications such as Chambers USA and Euromoney as a leading antitrust attorney. Before becoming an executive at Delta, Wilson was a partner at Kirkland and Ellis and, prior to that, at O’Melveny and Myers, where she counseled clients on antitrust and consumer protection issues. She also served as the chief of staff to FTC Chairman Tim Muris in 2001-02, where she would have dealt with a wide range of consumer protection issues. 

Rohit Chopra (D) is one of two Democratic commissioners, filling a term that expires in 2019. In contrast to the other nominees, Chopra is not a lawyer. His relevant consumer protection experience has focused primarily on student loan issues. From 2010 to 2015, he worked at the Consumer Financial Protection Bureau (CFPB), where he served as assistant director and student loan ombudsman. After the CFPB, Chopra was special advisor to the U.S. Secretary of Education. In that role, he also focused on student loan servicers and providers. Currently, Chopra is a senior fellow at the non-profit Consumer Federation of America, and previously he held the same title at the Center for American Progress. In an article last year on fine print in consumer agreements, Chopra was quoted as saying “fine print is often a way to give companies plausible deniability that they aren’t breaking the law.”

Rebecca Slaughter (D) was sworn in on May 2, taking over a term that expires in 2022. Slaughter served as chief counsel to Senate Minority Leader Chuck Schumer (D-NY). Prior to that, she was counsel to Schumer on the Senate Judiciary Committee and had a brief stint at the law firm Sidley & Austin after graduating from Yale Law School.