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Axinn Antitrust Insight: Confirmation of Third Democratic FTC Commissioner Secures Majority, Setting Stage for Aggressive and Unconventional Agenda
May 13, 2022
Axinn Update

On May 11, 2022, the U.S. Senate confirmed Alvaro Bedoya as a commissioner on the Federal Trade Commission. The confirmation secures a 3-2 Democratic majority on the FTC and sets the stage for Chair Khan to implement her and the Biden Administration’s aggressive and unconventional antitrust agenda.

Bedoya, a privacy law specialist, is the founding director of the Center on Privacy & Technology at Georgetown Law and previously served as chief counsel to the U.S. Senate Judiciary Subcommittee on Privacy, Technology, and the Law. Bedoya is viewed as knowledgeable about tech issues, particularly with respect to privacy and online platforms, but is not considered to have deep antitrust experience. In light of the Administration’s focus on a more aggressive antitrust agenda, companies should expect that Bedoya will vote along with the other two Democratic FTC Commissioners (Chair Khan and Commissioner Slaughter) on antitrust matters, providing for a three-vote Democratic majority.

Since October 1, 2021 – when Rohit Chopra left his FTC Commissioner position to become the Director of the Consumer Financial Protection Bureau – the FTC had been tied at 2-2 between the Democrats and Republicans. While the commissioners have publicly sparred about policy goals and priorities (among other things), the agency has continued a robust enforcement record on a bipartisan basis, challenging multiple transactions and causing several deals to be abandoned. For example, the FTC voted 4-0 in favor of two significant vertical merger challenges – NVIDIA/Arm and Lockheed Martin/Aerojet Rocketdyne, both of which were then abandoned.

Against that baseline of robust bipartisan enforcement, Bedoya’s confirmation now allows for implementation of a step-change in more aggressive and unconventional enforcement. Chair Khan and the Administration already have steadily telegraphed their agenda, which companies now should expect that the FTC will implement.  

The FTC’s aggressive and emboldened enforcement approach will necessarily be constrained by parties’ rights to contest enforcement actions in U.S. courts. In particular, while the ultimate actions to implement Chair Khan’s agenda remain to be seen, the FTC may face significant obstacles in the courts if the agency attempts to assert unconventional theories of harm that run counter to modern antitrust precedents or seeks to expand its authority through a novel interpretation of its rulemaking powers. Agency resources may also put a practical constraint on what the Commission can achieve, particularly if the FTC’s ability to attract and retain qualified talent is hindered by declining morale at the agency. 

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