As the unseasonably chilly month of April arrived, the Federal Trade Commission (FTC) was operating with only two commissioners – Commissioner Terrell McSweeny and then-Acting Chairman Maureen Ohlhausen (this had been the case since former Chairman Edith Ramirez vacated her post in January 2017). Then, on April 16, Commissioner McSweeny announced that she would step down effective April 28, leaving Ohlhausen as the lone commissioner. Although McSweeny’s seven-year term technically expired in September 2017, she continued to serve in the absence of a replacement. Former Acting Chairman Ohlhausen, of course, was nominated to serve as a U.S. Court of Federal Claims judge in January of this year, but that nomination has not yet been confirmed.
New Kids on the Block
On April 26, 2018, the Senate confirmed the nominations of five new commissioners: Joseph Simons, Noah Joshua Phillips, Rebecca Kelly Slaughter, Rohit Chopra and Christine Wilson.
Joseph Simons was sworn in as the FTC’s new chairman on May 1 and is familiar to the agency. Most recently, Chairman Simons served as the director of the Bureau of Competition from June 2001 to August 2003. He also served as the associate director for Mergers and the assistant director for Evaluation in the ’80s. In private practice, he most recently co-chaired the antitrust group of a major law firm.
Commissioner Phillips served as chief counsel to Senator John Cornyn, R-Texas, beginning in 2011 and advised on antitrust, constitutional law, consumer privacy, fraud and intellectual property. Commissioner Slaughter served as chief counsel to Senator Chuck Schumer, D-N.Y., beginning in 2009, during which she advised on legal, competition, telecommunications, privacy, consumer protection and intellectual property matters.
Commissioner Chopra was most recently with the Consumer Federation of America, where he focused on consumer financial services and economic issues facing young people. Prior to that, Chopra served as special advisor to the secretary at the U.S. Department of Education. Chopra also formerly served as assistant director of the Consumer Financial Protection Bureau shortly after its formation in 2010, and was the first student loan ombudsman for the agency, appointed in 2011. Commissioners Phillips, Slaughter and Chopra were sworn in on May 2.
Wilson currently serves as the senior VP of Regulatory and International Affairs for Delta Air Lines Inc. In private practice, she focused on competition and antitrust law.
Not So Fast
Although the Senate confirmed Wilson’s appointment to the FTC, she has not yet been sworn in. Commissioner Ohlhausen’s term does not expire until Sept. 25, 2018, and she has made clear that she does not intend to vacate her post until her judicial appointment has been confirmed. Following the Senate’s confirmation of the new commissioners, Commissioner Ohlhausen congratulated Simons, Phillips, Slaughter and Chopra and stated, “I also congratulate Christine, who will take my seat if I am so fortunate as to be confirmed by the Senate as a judge on the U.S. Court of Federal Claims.”
A number of the new commissioners have backgrounds focused less on privacy and consumer protection and more on competition and antitrust issues. It will be interesting to see how these new commissioners’ backgrounds shape the FTC’s enforcement priorities going forward.