Antitrust Alert #4
On Tuesday, President-elect Trump selected current FTC Commissioner Andrew Ferguson to be the next Chair of the agency and Republican attorney Mark Meador to serve as Commissioner, filling out the top roles that will be responsible for implementing the President’s antitrust agenda.
What Do Their Nominations Mean?
The nominations of Ferguson and Meador are a doubling down on the populist philosophies of Gail Slater, Trump’s choice to serve as Assistant Attorney General (AAG) for Antitrust at DOJ. With these nominations, we can expect that the FTC will continue to scrutinize the business practices of Big Tech, particularly related to competition and free speech. At the same time, Ferguson has made it clear that the organization might take a more permissive posture than it has under Chair Lina Khan, particularly by being more targeted with merger enforcement outside of Big Tech, halting AI regulations, and seeking to repeal “burdensome regulations.”
Punchbowl’s Ben Brody scooped an internal memo from Ferguson laying out a proposed agenda for the agency, which focused on the following four objectives:
Reverse Lina Khan’s Anti-Business Agenda
Hold Big Tech Accountable and Stop Censorship
Protect Freedom of Speech and Fight Wokeness
Fight the Bureaucracy to Implement President Trump’s Agenda
Importantly, since Ferguson is already a sitting Commissioner, he will not require Senate approval to serve as FTC Chair and can take over as head of the agency on Day One of the new Trump administration. However, since Meador’s nomination will need to be confirmed, the agency will be operating in a 2-2 Republican-Democrat deadlock initially, limiting Ferguson’s ability to implement some of the more partisan items on his agenda, at least right out of the gate.
Who is Andrew Ferguson?
Ferguson has served as a Republican Commissioner on the FTC since April of this year. From this perch, he has called for investigations into tech platforms around censorship issues, while dissenting from several of the agency’s recent rulemaking efforts, including a ban on non-compete clauses in employment contracts and rules to make it easier to cancel subscriptions. He did, however, support Chair Khan on several important decisions including the rewrite of the Hart-Scott-Rodino filing form and enforcement decisions like the successful suit against luxury goods company Tapestry.
Before his nomination to the FTC, Ferguson served as Virginia’s solicitor general, where he was instrumental in the filing of DOJ’s monopolization case against Google’s ad tech market, and as an aide to Senate Republican leader Mitch McConnell (R-KY).
Who is Mark Meador?
Mark Meador has spent his career working on antitrust and competition issues on the Hill, in government and in the private sector, most recently at his own boutique law firm Kressin Meador Powers LLC. He previously served as Deputy Chief Counsel for Antitrust & Competition Policy to Senator Mike Lee (R-UT), the Senior Republican on the Senate Judiciary Antitrust Subcommittee, where he played a key role in drafting several high-profile antitrust bills including a bipartisan proposal that would have forced Google to break up its digital advertising business. He was also instrumental in legislation aimed at increasing resources available to the federal antitrust enforcement agencies and bolstering states’ ability to enforce federal antitrust laws.
Meador previously worked as an antitrust enforcer at both the FTC and DOJ and in private practice at Paul, Weiss, Rifkind, Wharton & Garrison LLP, where he worked alongside current AAG for Antitrust Jonathan Kanter.
With Ferguson and Meador rounding out Trump’s major antitrust related appointments, one thing is clear: while there might be differences in emphasis, there might not be wholesale differences in philosophy. Enforcement will resemble much as it was during the first Trump Administration, rather than a reversion to the Reagan-Bush Era Republican philosophy of passive enforcement. Still, companies across industries should continue to watch and prepare, especially as the four core objectives outlined by Ferguson begin to truly to take shape.
This article is part of a series examining Antitrust in the new administration from FGS Global’s Partner & Global Head of Competition Josh Tzuker. Read the previous editions here:
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