Trump names four choices for FTC, including Simons as chairman

29 January 2018 12:02pm
FTC Sign

25 January 2018. By Claude Marx and Mike Swift.

President Donald J. Trump on Thursday worked toward filling out his choices for the Federal Trade Commission when he sent to the Senate the nominations of antitrust lawyer and former FTC official Joseph Simons to be chairman and Rohit Chopra, Noah Phillips and Christine Wilson to be FTC commissioners.

He had first announced his plan to nominate Simons and Chopra last October. Phillips and Wilson had been rumored to be choices for several months, but their nominations had been stalled due to political wrangling, MLex has learned.

Simons was director of the FTC’s Bureau of Competition under President George W. Bush and was associate director for mergers as well as assistant director for evaluation in the 1980s. Simons, with Barry Harris, a former deputy assistant attorney general for economics at the Justice Department’s antitrust division, developed “critical loss analysis,” a technique for defining markets that has been used by the government and the US Court of Appeals and was incorporated into the Department of Justice-Federal Trade Commission Merger Guidelines.

“Joe did a superb job as director,” former FTC Chairman Timothy J. Muris, who was Simons’ boss, told MLex last year. “Our agenda was aggressive and required both skillful preparation and implementation. Joe excelled at both.”

He earned his bachelor’s degree from Cornell University and his law degree from Georgetown University.

If confirmed by the Senate, Simons would succeed acting FTC Chairman Maureen Ohlhausen, who has been in the post since January 2017. She is the longest serving acting FTC chair in the agency’s history, and this week, Trump nominated her to be a judge on the US Court of Federal Claims, a post that also requires Senate confirmation.

FTC Commissioner Terrell McSweeny, a Democrat, will leave the agency as soon as Simons is sworn in.

Trump has not announced his choice for the other non-Republican spot on the FTC. Under the provisions of the FTC Act, no more than three commissioners can be from the same political party.

Chopra, a Democrat who built his reputation by aggressively overseeing the student lending business at the Consumer Financial Protection Bureau, was the choice of Senate Democrats for the FTC post. He has no experience in antitrust matters. He is very close to Senator Elizabeth Warren, the intellectual architect of the CFPB and one of the Democrats’ leading voices on consumer issues. The Massachusetts Democrat has recently become more vocal on antitrust matters as well.

Chopra, who earned his bachelor’s degree from Harvard University and his MBA from the Wharton School at the University of Pennsylvania, told MLex in 2013 that many new graduates can’t repay their loans at the original interest rate, but could do so if the rate were adjusted to take into account their recent job and credit histories.

Phillips has been chief counsel to Sen. John Cornyn, the No. 2 Republican in the Senate, since 2013. His focus has included antitrust, civil justice, constitutional law, intellectual property and privacy. His responsibilities included oversight of DOJ and the FTC. He has been the Texas Republican’s point person on efforts to reform patent litigation.  MLex reported last April that Phillips was in line to be nominated to the FTC.

Wilson, formerly a partner at the law firm of Kirkland & Ellis, has most recently been senior vice president for legal, regulatory and International issues at Delta Air Lines.  A veteran of the FTC, Wilson served as the chief of staff to Muris from August 2001 to November 2002. MLex first reported that she was in the running to join the commission in 2016.

In a 2013 interview with Law 360, Wilson said her most challenging merger case was an airline merger — Northwest’s merger with Delta. The case was so difficult, she said, because it was reviewed by the Departments of Justice and Transportation, 17 state attorneys general and six foreign agencies, as well as being subject to congressional hearings.

She earned her bachelor’s degree from the University of Florida, and her law degree from Georgetown University.

A leading technology-industry group, the Computer & Communications Industry Association, praised the qualifications of the nominees, and said it was relieved that the White House had filled out the seats on the FTC after so many months with just Ohlhausen and McSweeny leading the agency.

“An FTC with a fully staffed Board will benefit the agency’s many important endeavors from protecting consumers from identity theft to antitrust enforcement to reining in patent trolls shaking down small businesses,” said Ed Black, CCIA’s president and CEO.

“It will be helpful to have a full panel of Commissioners who understand how new technology enhances consumer welfare, but also how consumers need to be protected from those who might misuse it. A fully staffed board of commissioners would also contribute to empowering the agency’s efforts to promote and harmonize sound antitrust enforcement globally,” CCIA said.

The Senate Commerce, Science and Transportation will hold confirmation hearings for the FTC posts. Ohlhausen’s confirmation will be handled by the Senate Judiciary Committee.

- with additional reporting from Kirk Victor