Big Tech in Spotlight as Ex-FTC Head Joins Silicon Valley Firm

A former leader at the Federal Trade Commission is joining Silicon Valley-based law firm Wilson Sonsini as the tech industry comes under increased scrutiny from the Biden administration’s antitrust regime.

Maureen Ohlhausen, who was an FTC commissioner from 2012 to 2018 and served as acting chairman for the last year and a half of her tenure, left Baker Botts Jan. 5 to join Wilson Sonsini. The firm’s big clients have included Alphabet Inc. and TikTok Inc.

Ohlhausen joins at a time of aggressive competition regulation. The FTC and Justice Department brought a combined 50 merger enforcement actions in fiscal year 2022, representing the most challenges the US has brought since it began requiring pre-merger antitrust review in 1976, Bloomberg News reported.

Software company Adobe in December abandoned plans to buy cloud-based designer platform Figma for $20 billion as it faced scrutiny from antitrust regulators. New merger guidelines released Dec. 18 also include a section on deals involving “multi-sided platforms.”

“They have been aggressive, but mergers are still getting done,” said Ohlhausen. She noted her job continues to be explaining how antitrust regulators are going to “view the deal” businesses are considering.

Ohlhausen joined Wilson Sonsini along with her Baker Botts colleague Taylor Owings, a former chief of staff in the DOJ’s antitrust division during the Trump administration.

Ohlhausen and Owings’ government experience will “greatly benefit the firm’s clients, particularly in the current climate of heightened enforcement and oversight,” Wilson Sonsini managing partner Doug Clark said in a statement.

Labor Impact

Ohlhausen said much of her work will focus on helping Big Tech firms and startups navigate antitrust developments, including an overhaul to the merger guidelines that lowered the bar that agencies use to determine whether a merger will create a monopoly. She also said she’s paying close attention to FTC rulemaking and a proposal banning employers from imposing non-compete agreements.

Enforcement will continue to be “aggressive” in 2024, she said, with reviews generally taking longer because of the more comprehensive set of questions regulators are asking about deals. But questions also remain about how courts will act in response to lawsuits.

Maureen Ohlhausen joined Wilson Sonsini in January.

Companies trying to complete a deal are “going to get more questions about labor impact. There’s a big focus on nascent competition,” Ohlhausen said. “Issues like that may impact the length or the scope of the investigation, but the legal standards haven’t really changed. We haven’t seen any big sea change in the courts.”

Wilson Sonsini’s hire of Ohlhausen and Owings comes after antitrust practice leader Scott Sher, who advised on Qualcomm’s $1.4 billion acquisition of NUVIA in 2021, left in August to join Paul Weiss. That same month, McDermott Will & Emery in August hired away Cahill Gordon’s antitrust leader Elai Katz. Paul Hastings in July hired Hunton Andrews Kurth antitrust practice leaders Ryan Phair and Craig Lee.

High Demand, More Money

The current environment has driven an uptick in demand from law firms for antitrust attorneys with litigation expertise, said Justine Donahue, a managing director at legal search firm Macrae.

“Many law firms are really asking us for antitrust litigation talent, which is something we hadn’t seen much of prior to the last year or two,” Donahue said in an interview in December.

In her role at Wilson Sonsini, Ohlhausen said she will continue to seek clearance from the FTC to work on matters that come across her desk that she may have had oversight on during her time at the agency.

“I’ve gotten clearance on lots of things because I’m careful about just making sure I’m not getting close to any line,” Ohlhausen said. “I probably overcheck for that.”

The restrictions are in place to ensure that there won’t be a conflict on the outside, especially given the high turnover in government agencies, said William Kovacic, former FTC chair who worked with Ohlhausen at the agency and called her an outstanding colleague who understands the ethics regimen well.

“You have so many people in senior leadership positions leaving government agencies,” said Kovacic, a law professor at George Washington University. “It’s because of more money, it’s because of change in lifestyle, it’s because of retirements.”