Trump’s FTC Pick Will Go From Frequent Dissenter to Running Show

President-elect Donald Trump’s pick to run the Federal Trade Commission will take the reins after compiling a long list of dissents against the current Democratic majority, offering signs on how the commission’s priorities will shift.

Andrew Ferguson, who joined as a commissioner in April, has opposed much of the FTC’s rulemaking agenda under Chair Lina Khan while voicing a narrower view of the agency’s authority. He’s gone so far as to question the constitutionality of an aspect of the FTC’s in-house court.

But Ferguson, who could take over as chair on day one of Trump’s new administration, is also unlike past Republicans who sought to limit antitrust enforcement.

He’s vocal about wanting to apply pressure on Big Tech. And even in his dissent of the FTC’s lawsuit against Southern Glazer’s Wine & Spirits—the first government action under the Robinson-Patman Act in over two decades—Ferguson criticized the neglected enforcement of the law.

“It’s still going to be an aggressive antitrust enforcement regime,” said Gerald Stein, a Davis Wright Tremaine LLP antitrust partner. “But it’s going to have a different feel to it.”

Noncompete Rule

A former Virginia solicitor general who once clerked for Supreme Court Justice Clarence Thomas, Ferguson has indicated he’ll pull back from Khan’s regulatory efforts.

“The commission under President Trump will focus primarily on our traditional role as a cop on the beat,” Ferguson said in a Dec. 13 dissent to an announcement on the FTC’s regulatory agenda. “We will vigorously and faithfully enforce the laws that Congress has passed, rather than writing them.”

Just weeks into his tenure, Ferguson dissented in an FTC rule to prohibit worker noncompete agreements across the US, arguing the agency lacked clear authority from Congress.

A Texas federal judge in August blocked the rule from going into effect, and the case is now on appeal. But Ferguson’s opposition puts the rule’s future in doubt.

‘Traditional Role’

As one of two Republicans on the five-member commission, Ferguson has voiced similar constitutional concerns over a 2022 policy statement that broadened the commission’s mandate in policing “unfair methods of competition” under the FTC Act.

He raised that concern in a partial concurrence and dissent in a $25 million settlement the FTC reached Dec. 17 with GrubHub Inc. on allegations that it deceived consumers and restaurants on delivery costs.

Ferguson took issue with the FTC’s claim that GrubHub’s deceptive practices affected competitive conditions in the meal delivery market under the FTC Act, as well as what he called the majority’s habit of “advancing its most aggressive and novel theories in cases no judge will decide.”

In recent months, Ferguson also voted against a “click-to-cancel” rule designed to make it easier for customers to cancel recurring subscriptions and another that combats “junk fees” in live-event and hotel-room sales.

Ferguson didn’t issue a statement on the click-to-cancel rule, and he said his opposition to the junk fee rule was because it landed during the lame-duck period.

A focus on more traditional theories of harm in enforcement is expected to take precedence on Ferguson’s watch, which could affect court cases that Khan will hand off to him, such as ones against Amazon.com Inc. and Meta Platforms Inc.

Ferguson also dissented in the agency’s lawsuit against alcohol distributor Southern Glazer’s over alleged illegal price discrimination. But he did so while expressing support for enforcing price discrimination restrictions in the Robinson-Patman Act, noting he’d prefer instead to target “large retailers with buying power.”

Shifting Tech Priorities

Ferguson’s call for returning the FTC to a “traditional role” also collides with his interest in using antitrust to take on alleged censorship by Big Tech, a focus that would represent new terrain for the agency.

In a September opinion on an FTC report on social media and video streaming, he criticized the lack of attention on what he called “pervasive political censorship” by large tech platforms.

Ferguson “believes that a return to the traditional consumer welfare standard is overdue,” said Jennifer Fleury, a Hogan Lovells partner and former FTC trial counsel. “The one caveat is he’s indicated he’s interested in potentially creative and structural remedies against tech platform companies. That may be one tension we see.”

In that September statement, Ferguson also dissented from the FTC’s recommendations focused on artificial intelligence and targeted advertising.

He said it would be “foolish” to implement comprehensive AI regulations until the technology develops more, while claiming that concerns raised about targeted ads represented a “gratuitous attack on the online economy.”

Later that month, Ferguson opposed an FTC action against a firm named Rytr for providing its subscribers with the “means and instrumentalities” to produce false and deceptive AI-generated content for consumer reviews.

Going after a firm over the possibility that its tool could be used for fraud, Ferguson argued, is inconsistent with the law and risks “strangling a potentially revolutionary technology in its cradle.”

Agency Operator

Ferguson will take charge of the FTC as corporate targets ramp up attacks on the agency’s administrative process. Ferguson, however, is the unique figure inside the FTC who has offered some support for such challenges.

In October, he asserted that the FTC’s administrative law judges enjoy unconstitutional removal protections.

He made the argument even as he voted with the other commissioners to deny a motion to disqualify an FTC judge from hearing a case relating to alleged deceptive practices from tax services firm H&R Block Inc.

Still, such a position from the head of the FTC could invite more litigation, Fleury said.

“At a minimum,” Hogan Lovells said in a Dec. 17 client note, “targets of the FTC’s enforcement efforts challenging the constitutionality of the FTC’s structure and processes may soon get a more receptive audience at the FTC itself.”