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By Jimmy H. Koo
President-elect Donald Trump’s likely move to tap FTC Commissioner Maureen K. Ohlhausen to take over from departing Chairman Edith Ramirez won’t bring immediate enforcement changes, attorneys told Bloomberg BNA Jan. 13.
A lot may be at stake for companies under the Federal Trade Commission’s jurisdiction. Agency staff have been actively pursuing data security enforcement actions and will at least in the short term continue to do so. But the FTC commissioners set much of the public agenda and have ultimate authority to authorize litigation and approve settlements.
Ramirez announced Jan. 13 that she will resign from the commission, effective Feb. 10.
Of the five-member full commission—including the commissioner—Trump will have the opportunity to nominate three other commissioners immediately after taking office and a fourth by the end of 2017. The five Senate-confirmed members appointed to seven-year terms. One of the commissioners is named as chairman by the president without further Senate approval. No more than three members of the commission may be from the same political party.
The Trump Transition team didn’t immediately respond to Bloomberg BNA’s request for comment.
Julie Brill, a partner at Hogan Lovells LLP in Washington and co-leader of the firm’s Global Privacy and Cybersecurity Practice Group, said “President-elect Trump will be able to pick an acting Chair among the sitting Commissioners the day he is sworn in.”
Brill, a former FTC commissioner who served from 2010 to 2016, told Bloomberg BNA that she believes Trump “will pick Commissioner Ohlhausen, the only remaining Commissioner who is a Republican, to serve as acting Chair very shortly after he is sworn in. “
Robert P. Davis, antitrust counsel at Venable LLP in Washington and a former attorney adviser to former FTC Chairman Leibowitz, agreed. Trump doesn’t have to wait until Ramirez’s Feb. 10 departure date and Ohlhausen, a Republican commissioner, will likely be the sitting chair, Davis told Bloomberg BNA.
However, according to Phyllis H. Marcus, counsel in the global competition team at Hunton & Williams LLP in Washington and a former Federal Trade Commission attorney, the incoming Trump administration may have someone else in mind to replace Ramirez. Marcus told Bloomberg BNA that judging from other appointments, “it may be someone that people didn’t expect.”
Marcus said although it remains unclear when or who the Trump administration will choose as the FTC chair, that position “shouldn’t be left open too long.”
Following Ramirez’s departure, there will only be two active commissioners in the FTC—Ohlhausen and Terrell McSweeny, a Democratic commissioner.
Trump will be able to appoint three new commissioners, filling in the positions left by Ramirez, Joshua Wright and Brill.
According to Brill, “Trump will be able to change the complexion of the Commission by shifting the agency from a majority Democratic body to a majority Republican body, as he will be able to select up to two Republicans as his new Commissioner–nominees.”
Brill said that she expects the Trump administration to “announce a nominee for the permanent chair within the next few weeks.” Marcus agreed, saying that she wouldn’t be surprised if the announcement came soon.
Although it remains unclear who Trump will pick to fill the vacancies, regardless of the nominations, enforcement trends won’t change in the immediate future, attorneys said.
“In the immediate term, I don’t expect that there will be significant changes to the agency’s enforcement program,” Brill told Bloomberg BNA. “In the near term, I expect that Commissioners Ohlhausen and McSweeny will likely strive to pursue matters upon which they agree, and that aim to alleviate substantial harm to consumers,” she said.
Although there are certain things that Ohlhausen disagreed on with Ramirez, “enforcement actions are generally unanimous,” Davis said. Enforcement trends won’t “jerk forward too far ahead of where consensus is,” he said.
Marcus noted that with two commissioners—Ohlhausen and McSweeny—there will likely be a stalemate, not a trend in enforcement. The votes will be divided along party lines, she said. However, with three or more commissioners, there will be “some activity,” she said.
Marcus said that throughout her experiences at the FTC, spanning multiple administrations, she has seen “fewer things change than remain the same.”
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