The Federal Trade Commission recently saw its long-time Chairman leave the Commission; a sitting Commissioner named new Chairwoman; and a long-time Republican Commissioner replaced with an academic who has been critical of prior FTC actions. As a result, the five member Commission is left with two Democrats and two Republicans and seems likely in the near term to focus on actions where there is the bipartisan consensus necessary to obtain the three votes required to take action.
In early March, FTC Chairman Jon Leibowitz left the Commission after nearly nine years of service, including four years as Chairman. Leibowitz was a regular speaker, both to the media and at conferences, and helped revitalize the FTC's mission under its unique "unfair methods of competition" authority under FTC Act Section 5. His replacement as Chairwoman, current Commissioner Edith Ramirez, has been a much less frequent public speaker. While a Democrat appointee and Harvard Law Review colleague of President Obama, Ramirez also had several corporate clients during her time at the Quinn Emanuel law firm. She is described by friends and colleagues as "cautious" and "analytical." Since her promotion, Ramirez has made several public appearances where she has emphasized the expected continuity and bipartisanship of the Commissioners.
One of the new Commissioners with whom Ramirez will be working with is Josh Wright, a George Mason professor with degrees in both law and economics. Wright is a Republican appointee who replaced another long-serving Commissioner, Tom Rosch, in January. Rosch had often supported Leibowitz's Section 5 actions. Wright, on the other hand, has been publicly critical of some recent FTC actions under Section 5, including the 2009 complaint against Intel. Wright continued some of the same themes in his first speech as a Commissioner in February. Wright described his "evidence-based antitrust approach" as one where antitrust agencies make enforcement decisions based on sound economic and empirical foundations while being cognizant of the cost of potential errors. While criticizing the FTC's Intel actions, Wright generally supported the Commission's recent decisions to forego most actions against Google for exclusionary conduct related to search bias, but challenge the exclusion of discount real estate agents from certain online listing services in Realcomp.
The other Republican Commissioner, Maureen Ohlhausen, has been in her position since April 2012 and has shown a willingness to disagree with her colleagues. For instance, she dissented from parts of the 2012 Robert Bosch and 2013 Google settlements in which the FTC concluded there was a Section 5 violation related to standard essential patents. As Ohlhausen pointed out in a speech last month, these FTC actions provide insufficient guidance as to the limits of Section 5, whether generally or specifically related to standard essential patents, and could be misinterpreted by observers as insufficient recognition by the FTC of the value of intellectual property rights.
Until a fifth Commissioner is confirmed, any action by the FTC will require at least one vote from Commissioners nominated by both political parties. Because most FTC actions garner unanimous, or at least bipartisan support from the Commissioners, this temporary situation certainly will not shut down the FTC. Controversial actions, especially under Section 5, however, will need to overcome the skepticism repeatedly expressed by Commissioners Ohlhausen and Wright. The likely result is a focus on matters with strong factual support and in competition or consumer protection areas where there is broad bipartisan agreement on the need for FTC action.
A new fifth Commissioner has not yet been nominated. The candidates mentioned most often are Howard Shelanski and Leslie Overton. Shelanski has degrees in both law and economics, clerked for Justice Scalia and currently directs the FTC's Bureau of Economics. Overton has worked in the Washington office of Jones Day and the Department of Justice Antitrust Division. Currently, she is a deputy assistant attorney general in the Division. Any nomination and confirmation is expected to take months to complete.