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FTC Nominees Identify Agency’s Top Challenges in Web Questionnaires

The Senate Commerce, Science & Transportation Committee has set confirmation hearings for February 14 for President Donald Trump’s four nominees to the Federal Trade Commission (FTC).

For the past year, there have been two commissioners leading the agency – Acting Chairman Maureen Ohlhausen and Commissioner Terrell McSweeny.

The FTC Act provides for five commissioners, serving staggered seven year terms, with no more than three commissioners from one political party.  President Trump nominated four individuals who must be confirmed by the Senate.

Recently, the four nominees answered questions posted on the committee’s websitewhich provided insight into their views of the top challenges that the FTC faces, as well as personal background, potential priorities if elected and proposed plans of action. The following is an overview of what each of the nominees cited as the top three challenges for the agency.

Joseph Simons

Joseph Simons, a Republican, has been nominated as the Chairman. Mr. Simons previously was the Bureau Director of the FTC’s Bureau of Competition and more recently was a partner at Paul, Weiss, Rifkind, Wharton & Garrison, LLP.

When asked about the top three challenges facing the agency, Mr. Simons first identified the need to address concerns that the federal antitrust agencies have been too permissive in dealing with mergers and acquisitions. He stated that it is important to examine past merger enforcement activities and noted that it would be a good practice to extend the retrospective to non-merger matters as well.

Second, Mr. Simons indicated that he believes it is important to address merger remedies because of a recent study indicating high failure rates in some divestiture asset packages.

Finally, noting the rapid changes in technology and cyber threats, he believes that it is critical for the FTC to protect consumers without unduly burdening them or interfering with the ability of firms, especially small firms and new entrants, to use data to enhance competition.

Christine Wilson

A Republican, Christine Wilson was most recently the Senior Vice President of Legal, Regulatory & International for Delta Airlines and formerly Chief of Staff to former FTC Chairman Timothy Muris.

First, she indicated that the FTC should continue to focus on the health care industry because of the continuing growth of this sector, significant concerns about costs as well as the misuse of sensitive data, as well as burgeoning occupational licensing requirements.

Second, she identified the challenges associated with FTC and DOJ antitrust division maintaining a global leadership role in advancing sensible antitrust and consumer protection policies.

Finally, she noted the need to stay abreast of advancements in technology because they present enforcement complexities such as the intersection of intellectual property and antitrust and data security and privacy.

Noah Phillips

The third Republican nominee is Noah Phillips, Chief Counsel to Senator John Cornyn.

Mr. Phillips identified first, protecting the American consumer by enforcing the antitrust and consumer protection laws written by Congress. Second, maintaining predictability and intellectual rigor in the interpretation and enforcement of those laws. Third, keeping abreast of developments in technology and business practices to protect consumers.

Rohit Chopra

The fourth nominee, Rohit Chopra, a non-lawyer MBA, is the only Democrat among the nominees. Mr. Chopra was most recently a Senior Fellow at the Consumer Federation of America and was an Assistant Director at the Consumer Financial Protection Bureau.

First, Mr. Chopra indicated that the Commission must confront the rapid development and use of big data in almost every sector of the economy and noted how it is reshaping the financial services and education industries in particular. He believes that the FTC must carefully examine big data with respect to consumer protection, privacy, and competition. Second, he noted that the FTC should be nimble and adjust to macroeconomic shifts both here and abroad and should ensure that it has a clear view into the broader economic environment. Finally, he noted that the FTC should be a good steward of taxpayer resources.

Press reports note Senator Chuck Schumer has recommended his Chief Counsel Rebecca Slaughter as the fifth commissioner nominee.

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About this Author

Katherine Armstrong, Drinker Biddle Law Firm, Washington DC, Data Privacy Attorney

Katherine E. Armstrong is counsel in the firm’s Government & Regulatory Affairs Practice Group where she focuses her practice on data privacy issues, including law enforcement investigations, and research and analysis of big data information practices including data broker issues.

Katherine has more than 30 years of consumer protection experience at the Federal Trade Commission (FTC), where she served in a variety of roles, including most recently as a Senior Attorney in the Division of Privacy and Identity Protection.  In the Division of...