FTC Update: A Renomination and a Resignation
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FTC Update: A Renomination and a Resignation

Brownstein Client Alert, Feb. 16, 2023

The Federal Trade Commission (FTC) has had a lively week. On Monday, President Joe Biden renominated Democratic Commissioner Rebecca Kelly Slaughter to the FTC. Then, on Tuesday, Republican Commissioner Christine Wilson resigned from her post. These moves may impact both the agency’s enforcement priorities and how the related political optics play out.

Commissioner Slaughter originally joined the FTC in 2018 and, following the changeover in administrations, was acting chair until the Senate confirmed current chair Lina Khan in June 2021. During the Trump administration, Commissioner Slaughter issued frequent dissents, decrying a lax policy against anticompetitive conduct and problematic mergers. Her dissents have since become guideposts for the Democratic-controlled FTC under the Biden administration. Commissioner Slaughter’s renomination provides a sense of continuity to the commission, as she is its longest-serving member.

Conversely, in an opinion piece published in the Wall Street Journal, Commissioner Wilson announced she was resigning from the FTC and accused Chairwoman Khan of abusing her authority and “undermining the commission structure that Congress wrote into law.” Commissioner Wilson also specifically pointed to Chairwoman Khan’s decision not to recuse herself from the FTC’s challenge to Meta Platforms’ acquisition of virtual reality developer Within. That challenge is currently on pause. A U.S. district court judge refused to stop the merger ahead of the FTC’s in-house challenge, and the agency has noted that it “is still deciding whether or not to continue an in-house trial before the administrative judge.” In her own words, Commissioner Wilson is seeking to make a “noisy exit.”

In response, Chairwoman Khan and Commissioners Slaughter and Alvaro Bedoya issued a joint statement expressing that although they “often disagreed with Commissioner Wilson, we respect her devotion to her beliefs and are grateful for her public service.”

Although Commissioner Wilson has not specified when she will leave her post, with the departure of Commissioner Noah Phillips—a Republican nominated by former president Trump—last October, the FTC is likely to continue without its traditional 3-2 split. Federal law prohibits there being more than three commissioners of the same political party.

As the FTC eyes enforcement actions against Big Tech, Commissioner Slaughter is likely to be a driving force with her outspoken position on growing threats to competition and the broad abuse of consumers’ data. The White House stated that Commissioner Slaughter “believes that the Federal Trade Commission’s dual missions of promoting competition and protecting consumers are interconnected and complementary, and she is mindful that enforcement or rulemaking in one arena can have far-reaching implications for the other.”

While the FTC is able to execute its duties without a full commission, the current landscape and existing tensions regarding Chairwoman Khan’s aggressive antitrust agenda are likely to lead to accusations of politicization of the agency. Considering the FTC has been more active in recent years, including creating a rule aimed at eliminating noncompete agreements and challenging high-profile mergers, companies in a position to merge or acquire other businesses can and should monitor FTC’s actions closely in the coming months for clues on how all this will impact antitrust enforcement.

This document is intended to provide you with general information regarding FTC updates. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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