FTC Lawyers Leave at Fastest Rate in Years as Khan Sets New Tone

The Federal Trade Commission’s senior attorneys are leaving at a pace not seen in at least two decades, adding to the challenges facing the agency as it pursues expansive rulemaking.

Seventy-one “line staff” attorneys—non-leadership senior attorneys at the top of the federal government pay scale, known as GS-15s—left the agency in the two-year period between 2021 and 2022, according to data obtained by Bloomberg Law under the federal Freedom of Information Act. That’s the highest number of departures in the category for a comparable two-year period since 2000.

The wave of departures comes as the FTC undertakes an ambitious rulemaking agenda under Chair Lina Khan, including a proposed ban of employers’ noncompete agreements and limiting companies from engaging in “commercial surveillance” and selling or sharing collected consumer data. Khan has aggressively pursued antitrust enforcement, seeking to revive dormant laws in a bid to reign in Big Tech companies.

In total, 99 senior-level career attorneys—including line staff and leadership who are GS-15 and executive service attorneys—left the agency in the two-year period, according to the data. Of the GS-15s who departed, 27 were long-planned retirements, said FTC spokesperson Douglas Farrar.

The FTC, whose missions include antitrust enforcement and consumer protection, employed in total about 750 attorneys as of the end of 2022.

“You lose a lot of institutional knowledge” when senior staff and career leaders leave, said Debbie Feinstein, the former head of the FTC’s Bureau of Competition and now a partner at Arnold & Porter. “Career staff know whether something has been looked at before, whether it’s been litigated before. And they’ve been through things that they know is invaluable.”

A sizable portion of leadership attorneys—such as deputies and assistant directors of bureaus and specialized offices—also left the agency in 2021. A quarter of the 28 “executive service” employees in leadership departed that year. But three of them were political appointees of the Trump administration, Farrar said.

The departure numbers are the most current tally yet of the FTC’s staff retention rates during the Biden administration. The data covers attorney staff and management hires and departures from 2000 through the end of 2022.

The overall FTC attorney departures were significantly higher than average in 2021, but the losses were disproportionately among senior, career staff and leadership employees classified as GS-15s.

“GS-15s are the most experienced staff,” said Marian Bruno, a former deputy director of the Bureau of Competition. “Many have professional degrees and years of experience prior to coming to the agency.”

The number of staff attorney departures fell in 2022, compared to 2021. The agency also ramped up hiring in 2022, the data show.

“In fiscal year 2021 and 2022 the FTC reviewed and analyzed over 6000 HSR transactions, and brought 49 merger enforcement actions many of which led to abandoned deals,” Farrar said, referring to the Hart-Scott-Rodino merger notification program.

“In that same time frame the FTC has proposed rules to ban noncompete clauses and protect American’s digital privacy, filed 47 cases and proposed 84 orders to protect American consumers from deceptive advertising and exploitative data practices, and issued 11 policy statements, which is more than double the number of policy statements in any comparable period going back to 2000.”

“This volume of activity speaks to the diligence and commitment of FTC staff despite significant resource constraints,” Farrar added.

‘Lots of Knowledge’

A certain level of turnover is normal at the FTC, especially in the months after a new chair is confirmed early in a presidential administration. Planned retirements contribute to the departure numbers. And the agency has increased its staff of attorneys by about 200 in the last two decades.

The chaos of the Covid-19 pandemic and the Great Resignation in 2021 also likely contributed to some staff departures.

But the disproportionate spike in departures, particularly in leadership, is unusual, even if not catastrophic, said Daniel Kaufman, who served as Bureau of Consumer Protection deputy director for nearly a decade until October 2021.

Despite added hiring, the agency’s loss of institutional memory could prove a long-term problem as it grapples with heavier workloads and more intensive merger reviews.

“When you have an agency with this broad jurisdiction and you lose people who have been at agency for years with lots of knowledge—the experts—that’s a loss for the agency in terms of substantive expertise and also because the agency focuses on positive management: managerial expertise with people who understand how to get things done,” said Kaufman, now a BakerHostetler partner.

The FTC—working with the Justice Department’s antitrust division—is also undertaking a major overhaul of the merger guidelines, which outline how the regulators analyze and address deals for their anticompetitive impact.

“With this much change—the guidelines and the like—it’s helpful to have people who went through prior guideline revisions and those sorts of things,” Feinstein said.

Political Thunderclouds

Critics of the FTC’s Democratic majority have also raised concerns about staff departure.

“Rampant dissatisfaction among staff has led to the departures of many experienced personnel, causing a notable ‘brain drain,’” departing Republican Commissioner Christine Wilson said in her resignation letter March 2.

She also highlighted a 2022 employee viewpoint survey, which showed that just under half of FTC employees believe their senior leaders maintain high standards of honesty and integrity. That’s down from 87% in 2020 under previous Chairman Joseph Simons.

“Chair Khan is extraordinarily proud of the work that FTC staff do every day to further our mission to protect consumers and fair competition,” said FTC Chief of Staff Elizabeth Wilkins in a statement. “She has taken meaningful steps to address concerns raised in the viewpoint survey because she believes that creating a good environment for her hard working FTC colleagues is central to achieving her antitrust agenda.”

“What jumps out at me is that what we’ve been hearing anecdotally appears to be true: that lawyers did leave in the first full year of the Biden administration,” said Douglass Ross, a professor at the University of Washington School of Law and a former antitrust division attorney.

“That supports the argument some observers were making that some staff were leaving in response to leadership changes at the FTC,” Ross said.