President Biden Nominates Two Republicans As FTC Commissioners

• Jurisdiction: United States,Federal
• Law Firm: Arnold & Porter
• Subject Matter: Antitrust/Competition Law, Consumer Protection, Litigation, Mediation & Arbitration, Antitrust, EU Competition , Class Actions, Dodd-Frank, Consumer Protection Act
• Author: Ms Debbie Feinstein, Jonathan Gleklen and Jennifer Chang
• Published date: 10 July 2023

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...