On March 7, 2024, the U.S. Senate unanimously voted to confirm Republican nominees Melissa Holyoak and Andrew Ferguson to serve as Commissioners on the Federal Trade Commission (FTC). The Senate also re-confirmed Democratic nominee Rebecca Slaughter to a second term as Commissioner. The FTC has been without a full complement of commissioners since October 2022, and since March 2023, the typically bi-partisan FTC has operated only with three Democratic commissioners. Although the FTC will continue to be controlled by Chair Lina Khan and her Democratic colleagues, the addition of Commissioner Holyoak and Commissioner Ferguson will inject new and different perspectives and likely will stir debate about the agency’s policy priorities and enforcement goals.
New Commissioners Bring Diverse New Experiences to the FTC
Commissioner Melissa Holyoak
Melissa Holyoak brings nearly 20 years of litigation experience, including on consumer protection and antitrust issues, to her role at the FTC. Since 2020, she has served as Solicitor General in the Office of the Utah Attorney General, where she oversaw the state’s antitrust and data privacy cases. As Solicitor General, Holyoak has collaborated with the FTC to review proposed merger transactions. She also has represented Utah in several antitrust cases against companies, alleging that they engaged in anticompetitive conduct. Following law school, Holyoak spent five years working in private practice, where she focused on complex commercial and financial services litigation. Subsequently, Holyoak worked at the Center for Class Action Fairness where she contributed to the Center’s efforts to ensure that consumers received the primary benefit of class action settlements. Holyoak later served as President and General Counsel of Hamilton Lincoln Law Institute, a non-profit public interest law firm that represents consumers and shareholders in class actions. Holyoak also worked at the Competitive Enterprise Institute, which advocates for regulatory reform, where she represented class members and shareholders pro bono in class action and derivative lawsuits.
Commissioner Andrew N. Ferguson
Andrew Ferguson brings a broad range of experience, from defending businesses in private practice, to advancing policies and legislation as a staffer on Capitol Hill, to litigating consumer protection and antitrust cases on behalf of the Commonwealth of Virginia. During the last two years, Ferguson has served as Solicitor General for Virginia. In that role, he has helped lead the state’s involvement in several consumer protection and antitrust cases. Prior to becoming Solicitor General, Ferguson worked in private practice in consumer-protection litigation and antitrust investigations representing parties before the FTC and the DOJ. Ferguson also served as chief counsel to Senator Mitch McConnell and as a Republican counsel on the Senate Judiciary Committee.
What Impact Will the New Commissioners Have on the FTC?
The addition of Commissioner Holyoak and Commissioner Ferguson will bring a broader range of views to the FTC and may provoke more active debate about the agency’s enforcement and policy priorities. While we will learn more about their specific priorities in the coming months, both Holyoak and Ferguson have said they intend to enforce the antitrust and consumer protection laws vigorously. In particular, we expect they will support antitrust investigations and enforcement actions against the largest companies if they believe the evidence suggestions a violation may have occurred. Notably, the confirmations of Holyoak and Ferguson were delayed for months, until Senator Josh Hawley, a frequent critic of large tech companies, lifted a hold on the nominations upon receiving additional assurances from Ferguson that he supported robust antitrust enforcement.
At the same time, we also expect that Holyoak and Ferguson will focus their efforts on policing whether the FTC is exceeding its congressional mandate and preventing initiatives that they believe may result in costly and unnecessary regulation of the business community.
In terms of specific policy priorities, during her confirmation hearing, Commissioner Holyoak highlighted two key priorities she will focus on at the Commission: protecting children in the age of technological advancement and holding companies accountable for anticompetitive behavior. Commissioner Ferguson focused his comments during the confirmation hearing on the importance of defending the free-enterprise system and upholding the congressional restraints placed on the FTC as an executive-branch agency. Both Holyoak and Ferguson also emphasized the importance of bipartisanship at the FTC.
While Commissioners Holyoak and Ferguson are likely to raise the level of debate at the FTC, they are unlikely to be able to prevent any specific enforcement action or policy initiative. Chair Lina Khan and her Democratic colleagues (Commissioners Slaughter and Bedoya) will retain a majority at the FTC and therefore will control the agency’s enforcement and policy agenda, likely until at least the next election. Nevertheless, commissioners in the minority historically have been able to influence the FTC’s actions through public speeches and dissents, as well as through internal discussions with FTC staff.
Key Takeaways
- The Senate has confirmed two new Republican Commissioners – Melissa Holyoak and Andrew Ferguson – to the FTC.
- For the first time since October 2022, the FTC has its full complement of five commissioners, and for the first time since March 2023, the FTC is bipartisan.
- While Chair Khan and her Democratic colleagues still control the FTC, Commissioners Holyoak and Ferguson will bring new and different perspectives to the FTC and may prompt debate about the agency’s policy and enforcement goals.
- We will learn more about Commissioner Holyoak’s and Ferguson’s priorities in the coming months, but expect they will prioritize enforcing the antitrust laws against the largest companies while seeking to prevent what they perceive as agency overreach and costly regulation that may impact the broader US economy.
If you have any questions, please reach out to your contacts in Freshfields’ US antitrust team or Jan Rybnicek and Christine Wilson.
