President Biden Nominates Two Republicans as FTC Commissioners

On Monday, July 3, 2023, President Biden nominated Andrew N. Ferguson and Melissa Holyoak, both Republicans, for the two open Commission seats at the Federal Trade Commission (FTC or Commission). There are already three Democratic Commissioners and by law there can only be three Commissioners from the same party. FTC Commissioners not of the president’s party are traditionally selected by congressional leadership of the other party, and Ferguson is a former aide to Senate Republican leader Mitch McConnell. It is not clear how long it will take for them to be confirmed.

While both have worked on antitrust matters — Andrew Ferguson shows up several times in Westlaw as an attorney of record and Melissa Holyoak shows up several dozen times (albeit often in the context of challenging class action settlements on behalf of absent class members rather than on substantive antitrust issues), neither appears to have written or spoken about antitrust. While they have both been involved in antitrust matters in their respective roles as Solicitor General, there is little one can glean from that involvement about their own views of antitrust or what their approach will be as Commissioners. Nevertheless, given their backgrounds, one can expect that they will resist some of the more aggressive actions the Commission has been taking under the leadership of Chair Khan.

Some background information about each is set forth below.

Andrew N. Ferguson

Andrew Ferguson currently serves as the Solicitor General of the Commonwealth of Virginia, a position he assumed in February 2022. He previously served as Chief Counsel to U.S. Senate Republican Leader Mitch McConnell, Chief Counsel for Nominations and the Constitution to then-Judiciary Committee Chairman Lindsey Graham, Senior Special Counsel to then-Judiciary Committee Chairman Chuck Grassley, and as a law firm associate at Bancroft PLLC and Covington & Burling LLP. Ferguson received his J.D. from the University of Virginia School of Law and clerked for Judge Karen L. Henderson on the U.S. Court of Appeals for the D.C. Circuit and Justice Clarence Thomas on the Supreme Court of the United States.

In his role as Solicitor General for Virginia, he has been involved in Virginia’s participation in the following multistate AG antitrust/consumer protection cases:

• In June 2023, Virginia was one of 42 states that negotiated a US$102.5 million settlement with Indivior in a case alleging that Indivior used illegal “product hopping” to switch the market for the company’s Suboxone opioid treatment from tablets to film in order to prevent entry by generics that offered only tablets.¹
• In January 2023, Virginia joined the DOJ and seven other state attorneys general in filing a lawsuit against Google for alleged federal antitrust violations related to Google’s advertising technology.²
• In December 2022, Virginia joined 26 other state attorneys general in an amicus brief filed in Gonzalez v. Google LLC.³ The brief urged the Supreme Court to adopt a narrow interpretation of Section 230 of the federal Communications Decency Act that excludes technology companies from claiming “‘publisher’ immunity” to ensure that technology companies remain accountable under state consumer protection laws.
• In October 2022, Virginia was one of 35 states that joined an amicus brief in the 10th Circuit supporting Oklahoma’s laws regulating PBMs.⁴

Melissa Holyoak

Melissa Holyoak has been the Solicitor General of Utah since September 2020. She earlier served as President and General Counsel of the Hamilton Lincoln Law Institute, an organization that stands for “free markets, free speech, limited government, and separation of powers, and against regulatory abuse and rent-seeking.” Prior to that she was an attorney with the Competitive Enterprise Institute (CEI) whose mission “is to reform America’s unaccountable regulatory state” and the Center for Class Action Fairness (CCAF), an organization that represents absent class members pro bono against what they allege to be abusive class action settlements. She started her career as an associate with O’Melveny & Myers LLP after graduating from the S. J. Quinney College of Law in 2003.

In her role as Utah’s Solicitor General, she has been involved in the following matters:

• Epic Games Inc. v. Apple Inc.⁵ where she was counsel of record.
• Along with 9 other states, Holyoak filed a Third Circuit amicus brief in support of a class member objector to the US$3 million attorney fee included in a settlement between Wawa Inc. and a consumer class over a 2019 data breach.⁶

And in private practice, she was involved in the following matters:

• While at CEI, she represented absent class member objectors in Frank v. Gaos,⁷ a case alleging that Google violated the Stored Communications Act. CEI argued that the cy pres settlement was improper because some of the cy pres recipients had previously received donations from Google, received Google settlement funds, or were organizations housed at class counsel’s alma maters.
• Additionally at CEI, Holyoak represented an objector in the Target data breach litigation challenging (1) class certification on the grounds that the class lacked “adequate representation due to an alleged intraclass conflict” and (2) the settlement agreement on the basis of excessive attorneys’ fees.⁸
• At CCAF, she represented objectors to a settlement agreement in In re Polyurethane Foam Antitrust Litigation, challenging the proposed cy pres recipients of the Settlement Fund.⁹

Democrats will retain the majority at the Commission, and the addition of Ferguson and Holyoak will not change the Commission’s enforcement priorities and is unlikely to change the results of Commission votes (where Commissioners Slaughter and Bedoya have rarely parted ways with Chair Khan). It remains to be seen whether the addition of Republican Commissioners will change the internal dynamics of the Commission, but at a minimum, we will learn when they agree with or dissent from the majority’s views.

© Arnold & Porter Kaye Scholer LLP 2023 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.